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f 



iW'Cr- 

YlHr 3 



K 



THE 



LAW OF NATIONS; 



0B| 



PRINCIPLES OF THE LAW OF NATURE, 



APPLBD TO na 



CONDUCT AND AFFAIRS 



NATIONS AND SOYEEEIGNS. 



FROM THE FRENCH 



MONSIEUR DE VATTEL 



^ * 



s 



-;^;>. 



* Nlbll ml onliu illi prindpi Deo qui omnem huoc muudum regit, quod qut(3«mii^ terrlB flftt, anoptiiu^ 
q^uAm ccruc Uia coctiuque hominxim jure eodati, quiB dritates appellanturTVCicirEO, Som. Sop. 



FROM THE NEW EDITION, 



JOSEPH CHITTY, Esq. 



BARRISTER AT LAW. 



WITH BEFERENCES TD AMERICAN DECISIONS. 



PHILADELPHIA: 
r & J. W. JOHNSON, LAW BOOKSELLERS, 

No. 19T CHESTNUT STREET. 
1852. 



1.*. 



ff 









PREFACE 



TO THE PRESENT EDITION. 



J. HE merits and increasing utility of this admirable work have 
not, as yet, been sufficiently known, or justly appreciated. It 
has been generally supposed that it is only adapted for the 
study of sovereigns and statesmen, and in that view certainly 
the author's excellent Preface points out its pre-eminent im- 
portance. But it is of infinitely, more extended utility. It con- 
tains a practiqal collection of ethics, principles, and rules of 
conduct to be observed and pursued, aa well hy private indivi- 
duals as by states^ and these of the utmost practical importance 
to the well-being, happiness, and ultimate and permanent ad- 
vantage and benefit of all mankind ; and, therefore, ought to 
be studied by every gentleman of liberal education, and by youth, 
in whom the best moral principles should be inculcated. The 
work should be familiar in the UniversUies, and in every class 
above the inferior ranks of society. And, as regards lawyers, 
it contains the clearest rules of construing private contracts, 
and respecting the Admiralty and Insurance Law. The posi- 
tions of the author, moreover, have been so sensibly and clearly 
supported and explained, and so happily illustrated by histo- 
rical and other interesting examples, that the perusal cannot 
fail to entertain as well as instruct. The present Editor, 
therefore, affirms, without the hazard of contradiction, that 
every one who has attentively read this work, will admit that 
he has acquired a knowledge of superior sentiments and more 
important information than he ever derived from any other 
work. 

ill 



^i^ 



PREFACE TO THE PRESENT EDITION. 



Many years have elapsed since the original work was pub- 
lished, long before the invaluable decisions of Sir WilUam 
Scott, Sir C. Robinson, and Sir John Nichol, and other emi- 
nent Judges in the Courts of Admiralty, and Prize and other 
Courts ; and the last edition, upon which any care was be- 
stowed, was published in A. D. 1797; since which time, and 
especially during the last general war, many most important 
rules respecting the Law of Nations were established. The 
object of the present Editor has, therefore, been to collect and 
condense, in numerous notesy the modem rules and decisionSy and 
to fortify the positions in the text by references to other au- 
thors of eminence, and by which he hopes that this edition 
will be found of more practical utility, without interfering with 
the text, or materially increasing its size. 

The Editor had proposed to form an Index^ so 83 to render 
the work more readily accessible ; but, in that desire, he has 
been overruled by the publishers, who think that the exceed- 
ingly full Analytical Table of Contents following the Preface, 
and naming the pages where each position is to be found, are 
sufficient, without increasing the bulk of the work, and, con- 
sequently, the expense. The Editor hopes that the student 
who may examine his numerous notes will not think that he 
has wasted time. 

J. CHITTY. 

Chamher9f 6, Ckaneery Lane, 
November, 1833. 



r 



ADVERTISEMENT 

TO THE EDITION OP A. D. 1797. 



xN undertaking this new edition of Monsieur De Vattel's trea- 
tise, it was not my intention to give what might strictly be 
called a new translation. To add the author's valuable notes 
from the posthumous edition, printed at Neufchatel in 1773, — 
to correct some errors I had observed in the former version, — 
and occasionally to amend the language where doubtful or 
obscure, — were the utmost limits of my original plan. As I 
proceeded, however, my alterations became more numerous ; 
but whether they wUl be acknowledged as amendments, it 
must rest with the reader to determine. Even if this decision 
should be more favourable than I have any reason to expect, I 
lay no claim to praise for my humble eflforts, but shall esteem 
myself very fortunate if I escape the severity of censure for 
presenting the work to the public in a state stiU so far short 
of perfection. Conscious of its defects, I declare, with great 
sincerity, — 

. . . Veniam pro laude peto, — laudatus abnnde, 
Non fastidittis si tibi, lector, ero. 

THE EDITOR. 

London, May 1, 1797. 

a2 V 



) 



/ 



PREFACE. 



± HE Law of Nations, though so noble and important a subject, has 
not, hitherto, been treated of with all the care it deserves. The greater 
part of mankind have, therefore, only a vague, a very incomplete, and 
often even a false notion of it. The generality of writers, and even 
celebrated authors, almost exclusively confine the name of " Law of 
Nations" to certain maxims and treatises recognised among nations, and 
which the mutual consent of the parties has rendered obligatory on 
them. This is confining within very narrow bounds a law so extensive 
in its own nature, and in which the whole human race are so intimately 
concerned ; it is, at the same time, a degradation of that law, in conse- 
quence of a misconception of its real origin. 

There certainly exists a natural law of nations, since the obligations 
of the law of nature are no less binding on states, on men united in 
political society, than on individuals. But, to acquire an exact know- 
ledge of that law, it is not sufficient to know what the law of nature 
prescribes to the individuals of the human race. The application of 
a rule to various subjects, can no otherwise be made than in a manner 
agreeable to the nature of each subject. Hence, it follows, that the 
natural law of nations is a particular science, consisting in a just and 
rational application of the law of nature to the afiairs and conduct of 
nations or sovereigns. All treatises, therefore, in which the law of 
nations is blended and confounded with the ordinary law of nature, are 
incapable of conveying a distinct idea, or a substantial knowledge of 
the sacred law of nations. 

The Romans often confounded the law of nations with the law of nature, 
giving the name of "the law of nations" {Jus Gentium) to the law of 
nature, as being generally acknowledged and adopted oy all civilized 
nations.* The definitions given by the emperor Justinian, of the law 
of nature, the law of nations, and the civil law, are well known. " The 
law of nature," says he, " is that which nature teaches to all animals" if 
thus he defines the natural law in its most extensive sense, not that 
natural law which is peculiar to man, and which is derived as well from 
his rational as from his animal nature. " The civil law," that emperor 
adds, " is that which each nation has established for herself, and which 
peculiarly belongs to each state or civil society. And that law, wHch na- 

* Keque Tero boo solum natnrft, id eaty jure f Job naturale est, quod natura omnia ani- 
gentiuu, Ao. Cicero de Offio. lib. ilL c. 5. malia docuit. Instit Ub. i. tit 2. 



VIU PREFACE. 

tural reason has established among all mankind, and which is equally ob- 
served by all people, is called the law of nations, as being law which all 
nations follow.'*' In the succeeding paragraph, the emperor seems to ap- 
proach nearer to the sense we at present give to that term. " The law of 
nations,'' sa^rs he, ^'is common to the whole human race. The exigencies 
and necessities of mankind have induced aU nations to lay down and adopt 
certain rules of right. For wars have arisen, and produced captivity 
and servitude, which are contrary to the law of nature ; since, by the 
law of nature, all men were originally bom free."t But from what he 
adds, — ^that almost all kinds of contracts, those of buying and selling, 
of hire, partnership, trust, and an infinite number of others, owe their 
origin to that law of nations, — ^it plainly appe&rs to have been Justinian's 
idea, that, according to the situations and circumstances in which men 
were placed, right reason has dictated to them certain maxims of equity, 
so founded on the nature of things, that they have been universally 
acknowledged and adopted. Still this is nothing more than the law of 
nature, wMch is equally applicable to all mankind. 

The Romans, however, acknowledged a law whose obligations are 
reciprocally binding on nations : and to that law they referred the right 
of embassies. They had also their fecial la}v, whicn was nothing more 
than the law of nations in its particular relation to public treaties, and 
especially to war. The feciales were the interpreters, the guardians, 
and, in a manner, the priests of the public faith.| 

The modems are generally agreed in restricting the appellation of 
"the law of nations ' to that system of right and justice which ought 
to prevail between nations or sovereign states. They difiFer only in the 
ideas they entertain of the origin whence that system arose, and of the 
foundations upon which it rests. The celebrated Grotius understands 
it to be a system established by the common consent of nations : and 
he thus distinguishes it from the law of nature: "When several persons, 
at diiferent times, and in various places, maintain the same thing as 
certain, such coincidence of sentiment must be attributed to some gene- 
ral cause. Now, in the questions before us, that cause must necessarily 
be one or the other of these two — either a just consequence drawn 
from natural principles, or a universal consent. The former discovers 
to us the law of nature, and the latter the law of nations."§ 

That great man, as appears from many passages in his excellent 
work, ha3 a glimpse of the tmth: but as he had the task of extracting 

* Quod qalsque popnliu ipse eibi jus eon- torali Juxi oontrariea. Jaro enim natnrali 

gtitoiti id ipsiiM proprinm civitatis est^ too»- onmes homines ab initio liberi nasoebantnr. 

torque jos ciTile^ quasi jus proprinm ipsins Id, } 2. 

dvitaiis : qnod yero nataralis ratio kiter cm- ^ Feeialet, quod fidei publicao inter popnloe 

nes homines oonstitnit^ id apud omnes per- prserant : nam per hos fiebat ut justom oon- 

seque oustoftitar, Yooatorqne jus gentium, qua- dperetur bellum (et inde desitom), et ut fbe- 

81 quo jure omnes gentes utantnr. Instit. lib. L dere fides paois oonstitueretnr. Ex his mitte- 

tii. ii. J 1. bant) antequam oonciperetnr, qui res repete- 

f Jus autem gentium onml hnmano generi rent : et per hos etiam nuno fit foedus. Yarro 

commune est; nam usn exigento et humanis de Ling. Lat lib. ir. 

n.ecessitatibus, gentes humansB jura quaedam J De Jure Belli et Pwsie, translated by Bar- 

Kibi constituerunt Bella etenim orta sunt, et beyrao : Prellminaiy Discourse, J 41. 
raptivitatos seoutn et servitutes, quiB sunt na- 



PREFACE. IX 

from the rude ore, as it were, and.reduciDg into regular shape and 
form, a new and important subject, which had been much neglected 
before his time, it is not surprising that, having his mind burthened 
with an immense variety of objects,and with a numberless train of quo- 
tations, which formed a part of his plan, he could not always acquire 
those distinct ideas so necessary in the sciences. Persuaded that na- 
tions, or sovereign powers, are subject to the authority of the law of na- 
ture, the observance of which he so frequently recommends to them, that 
learned man, in fact, acknowledged a natural law of nations, which he 
somewhere calls the internal law of nations : and, perhaps, it will appear 
that the only difference between him and us lies in the terms. But we 
have already observed, that, in order to form this natural law of na- 
tions, it is not sufficient simply to apply to nations what the law of na- 
ture decides with respect to individuals. And, besides, Grotius, by his 
very distinction, and by exclusively appropriating the name of "the 
law of nations" to those maxims which have been established by the 
common consent of mankind, seems to intimate that sovereigns, in 
their transactions with each other, cannot insist on the observance of any 
but those last-mentioned maxims, reserving the internal law for the 
direction of their own consciences. If, setting out with the idea that 
political societies or nations live, with respect to each other, in a 
reciprocal independence, in the state of nature, and that, as political 
bodies, they are subject to the natural law, Grotius had, moreover, con- 
sidered that the law must be applied to these new subjects in a manner 
suitable to their nature, that judicious author would easily have disco- 
vered that the natural law of nations is a particular science; that it 
produces between nations even an external obligation wholly indepen- 
dent of their will ; and that the common consent of mankind is only 
the foundation and source of a particular kind of law, called the Ar^ 
Utrary Law rf Nations. 

Hobbes, in whose work we discover the hand of a master, notwithstand- 
ing his paradoxes and detestable maxims, — Hobbes was, I believe, the 
first who gave a distinct, though imperfect idea, of the law of nations. 
He divides the law ofnatwre into that of man^ and that of «^a^e«; and 
the latter is, according to him, what we usually call the law of nations. 
" The maxims," he adds, " of each of these laws are precisely the same: 
but as states, once established, assume personal properties, that which 
is termed the natural law, when we speak of the duties of individuals, 
is called the law of nations when applied to whole nations or states."* 
This author has well observed, that the law of nations is the law of na- 
ture applied to states or nations. But we shall see, in the course of this 
work, that he was mistaken in the idea that the law of nature does not 
suffer any necessary change in that application, an idea, from which 

* Runus (Jix )natutahs dividi potest in prietates hominum peiBOnaleB, lex quam, lo- 

nataralem hominum, qoe sola obtinuit did quentes de hominam singuloxtim officio, na- 

Iax Naiwr^ et naturalem dmtatumj qusB did turalem didmus, applicata totis d^tatibus, na- 

potest Iax Geftftiim,TQ]go antem Jut Gentium tionibos, sive gentibus, vocator Jut Gentium, 

appellatnr. Praoeptaatriusqneeadem sunt: De Ciye, o. ziv. § 4. 
sed quia dvitates semel institute induunt pro- 
2 



X PKEPACK. 

he concluded that the maxims of the law of nature and those of the 
law of nations are precisely the same. 

Puffendorf declares that he unreservedly subscribes to this opinion 
espoused by Hobbes.* He has not, therefore, separately treated of the 
law of nations, but has everywhere blended it with the law of nature, 
properly so called. 

Barbeyrac, who performed the oflBce of translator and commentator 
to Grotius and Puffendorf, has approached much nearer to the true idea 
of the law of nations. Though the work is in everybody's hands, I 
shall here, for the reader's convenience, transcribe one of that learned 
translator's notes on Grotius's Law of War and Peace.f "I acknow- 
ledge," says he, "that there are laws common to all nations — ^things 
which all nations ought to practise towards each other : and if people 
choose to call these the law of nations, they may do so with great pro- 
priety. But, setting aside the consideration that the consent of man- 
kind is not the basis of the obligation by which we are bound to observe 
those laws, and that it cannot even possibly take place in this instance — 
the principles and the rules of such a law are, in fact, the same as these 
of the law of nature, properly so called ; the only difference consisting 
in the mode of their application, which may be somewhat varied, on 
account of the difference that sometimes happens in the manner in which 
nations settle their affairs with each other." 

It did not escape the notice of the author we have just quoted, that 
the rules and decisions of the law of nature cannot be purely and simply 
applied to sovereign states, and that they must necessarily undergo 
some modifications in order to accommodate them to the nature of the 
new subjects to which they are applied. But it does not appear that 
he discovered the full extent of this idea, since he seems not to approve 
of the mode of treating the law of nations separately from the law of 
nature as relating to individuals. He only commends Budseus's method, 
saying, " It was right in that author to point out, J after each article 
of the law of nature, the application which may be made of it to nations 
in their mutual relations to each other, so far, at least, as his plan per- 
mitted or required that he should do this."§ Here Barbeyrac made one 
step, at least, in the right track : but it required more profound reflec- 
tion, and more extensive views, in order to conceive the idea of a sys- 
tem of natural law of nations, which should claim the obedience of 
states and sovereigns, to perceive the utility of such a work, and espe- 
cially to be the first to execute it. 

This glory was reserved for the Baron de Wolf. That great philoso- 
pher saw that the law of nature could not, with such modifications as 
the nature of the subjects required, and with suflScient precision, clear- 
ness, and solidity, be applied to incorporated nations, or states, without 
the assistance of those general principles and leading ideas by which 

* Puffendorf's Law of Nature and NatiouB, § Note 2 on Puffendorf 8 Law of Nature 

book ii. chap. iii. J 23. and Nations, book iL chap. 3, { 23. I hare 

t Book i. chap. L § 14, note 3. not been able to procure Budseus's work, 

X In his Elementa Philos. Pract fVom which I suspect that Barbeyrac derired 

this idea of the Law of Nations. 



PREFACE. XI 

the application is to be directed ; that it is by those principles alone we 
are enabled evidently to demonstrate that the decisions of the law of 
nature, respecting individuals, must, pursuant to the intentions of that 
rery law, be changed and modiiSed in their application to states and 
political societies, and thus to form a natural and necessary law of na- 
tions :* whence he concluded, that it was proper to form a distinct 
system of the law of nations, a task which he has happily executed. 
But it is just that we should hear what Wolf himself says in his Pre- 
face. 

" Nations,"! says he, " do not, in their mutual relations to each 
other, acknowledge any other law than that which Nature herself has 
established. Perhaps, therefore, it may appear superfluous to give a 
treatise on the law of nations, as distinct from the law of nature. But 
those who entertain this idea have not sufficiently studied the subject. 
Nations, it is true, can only be considered as so many individual per. 
sons living together in the state of nature ; and, for that reason, we 
must apply to them all the duties and rights which nature prescribes 
and attributes to men in general, as being naturally born free, and bound 
to each other by no ties but those of nature alone. The law which 
arises from this application, and the obligations resulting from it, pro- 
ceed from that immutable law founded on the nature of man ; and thus 
the law of nations certainly belongs to the law of nature : it is, there- 
fore, on account of its origin, called the natural, and, by reason of its 
obligatory force, the necessary law of nations. That law is common to 
all nations ; and if any one of them does iiot respect it in her actions, 
she violates the common rights of all the others. 

*^ But nations or sovereign states being moral perilous, and the sub- 
jects of the obligations and rights resulting, in virtue of the law of na- 
ture, from the act of association which has formed the political body, 
the nature and essence of these moral persons necessarily differ, in many 
respects, from the nature and essence of the physical individuals, or 
men, of whom they are composed. When, therefore, we would apply 
to nations the duties which the law of nature prescribes to individual 
man, and the rights it confers on him in order to enable him to fulfil his 
duties, since those rights and those duties can be no other than what 
are consistent with the nature of their subjects, they must, in their ap- 
plication, necessarily undergo a change suitable to the new subjects 
to which they are applied. Thus, we see that the law of nations does 

* If it were not more advisable for the founded on the nature of man, so the natural 
sake of bieyitj, of avoiding repetitions, and law of nations is the natural taw of political 
taking advantage of the ideas already formed societies, and founded on the nature of 
and established in the minds of men, — if, those societies. But as the result of either 
for aU these reasons, it were not more conve- mode is ultimately the same, I have, in prefer- 
ment to presuppose, in this instance, a know- ence, adopted the more compendious one. 
ledge of the oidinary law of nature, and on As the law of nature has already been treated 
that ground to undertake the task of applying of in an ample and satis&ctory manner, the 
it to sovereign states, — it would, instead of shortest way is simply to make a rational 
q>eakingofsuch application, be more accurate appUcation of it to nations. 
to say, that, as the law of nature, properly so t A nation here means a sovereign state, 
caUed, is the natural law of individuals and an independent political society. 



Zii PBEFAOB. 

not, in every particular, remain the same as the law of nature, regu- 
lating the actions of individuals. Why may it not, therefore, be sepa- 
rately treated of, as a law peculiar to nations?" 

Being myself convinced of the utility of such a work, I impatiently 
waited for Monsieur Wolfs production, and, as soon as it appeared, 
formed the design of facilitating, for the advantage of a greater number 
of readers, the knowledge of the luminous ideas which it contains. The 
treatise of the philosopher of Hall on the law of nations is dependent on 
all those of the same author on philosophy and the law of nature. In 
order to read and understand it, it is necessary to have previously stu- 
died sixteen or seventeen quarto volumes which precede it. Besides, it 
is written in the manner and even in the formal method of geometriusal 
works. These circumstances present obstacles which render it nearly 
useless to those very persons in whom the knowledge and taste of the true 
principles of the law of nations are most important and most desirable. 
At first, I thought that I should have had nothing farther to do than 
to detach this treatise from the entire* system, by rendering it indepen- 
dent of every thing Monsieur Wolf had said before, and to give it a new 
form, more agreeable, and better calculated to insure it a reception in 
the polite world. With that view, I made some attempts; but I soon 
found, that if I indulged the expectation of procuring readers among 
that class of persons for whom I intended to write, and of rendering my 
efforts beneficial to mankind, it was necessary that I should form a veiy 
different work from that which lay before me, and undertake to fumisn 
an original production. The method followed by Monsieur Wolf has 
had the effect of rendering his work dry, and in many respects incom- 
plete. The different subjects are scattered through it in a manner that 
is extremely fatiguing to the attention: and, as the author had, in his 
**Law of Nature," treated of universal public law, he frequently con- 
tents himself with a bare reference to his former production, when, in 
handling the law of nations, he speaks of the duties of a nation 
towards herself. 

From Monsieur Wolfs treatise, therefore, I have only borrowed 
whatever appeared most worthy of attention, especially the definitions 
and general principles ; but I have been careful in selecting what I 
drew from that source, and have accommodated to my own plan the ma- 
terials with which he furnished me. Those who have read Monsieur 
Wolfs treatises on the law of nature and the law of nations, will see 
what advantage I have made of them. Had I everywhere pointed out 
what I have borrowed, my pages would be crowded with quotations 
equally useless and disagreeable to the reader. It is better to acknow- 
ledge here, once for all, the obligations I am under to that great master. 
AMough my work be very different from his, (as will appear to those 
who are willing to take the trouble of making the comparison,) I confess 
that I should never have had the courage to launch into so extensive 
a field, if the celebrated philosopher of Hall had not preceded my steps, 
and held forth a torch to guide me on my way. 

Sometimes, however, I have ventured to deviate from the path which 
he had pointed out, and adopted sentiments opposite to has. I will 



PPSFAOE. ZIU 

here quote a few instances. Monsieur Wolf, influenced, perhaps, by 
the example of numerous other writers, has devoted several sections* 
to the express purpose of treating of the nature o{ patrimonial kingdoms, 
without rejecting or rectifying that idea so degrading to human kind. 
I do not even admit of such a denomination, which I think equally 
shocking, improper, and dangerous, both in its effects, and in the im- 
pressions it may give to sovereigns: and in this, I flatter myself I shall 
obtain the suffrage of every man who possesses the smallest spark of 
reason and sentiment, in short, of every true citizen. 

Monsieur Wolf determines (Jus Gent. § 878) that it is naturally law- 
ful to make use of poisoned weapons in war. I am shocked at such a 
decision, and sorry to find it in the work of so great a man. Happily 
for the human race, it js not difficult to prove the contrary, even from 
Monsieur Wolfs own principles. What I have said on this subject may 
be seen in Book III. § 156. 

In the very outset of my work, it will be found that I differ entirely 
from Monsieur Wolf in the manner of establishing the foundations of 
that species of law of nations which we call voluntary. Monsieur Wolf 
deduces it from the idea of a great republic {civitatis maximce) instituted 
by nature herself, and of which all nations of the world are members. 
According to him, the voluntary law of nations is, as it were, the civil 
law of that great republic. This idea does not satisfy me ; nor do I 
think the fiction of such a republic either admissible in itself, or capa- 
ble of affording sufficiently solid grounds on which to build the rules of 
the universal law of nations, which shall necessarily claim the obedient 
acquiescence of sovereign states. I acknowledge no other natural so- 
ciety between nations than that which nature has established between 
mankind in general. It is essential to every civil society (civitati) that 
each member have resigned a part of his right to the body of the society, 
and that there exist in it an authority capable of commanding all the 
members, of giving them laws, and of compelling those who should re- 
fuse to obey. Nothing of this kind can be conceived or supposed to 
subsist between nations. Each sovereign state claims, and actually pos- 
sesses an absolute independence on all the others. They are all, accord- 
ing to Monsieur Wolf himself, to be considered as so many individuals 
who live together in the state of nature, and who acknowledge no other 
laws but those of nature, or of her Great Author. Now, although 
nature has indeed established a general society between mankind, 
by creating them subject to such wants as render the assistance of their 
fellow creatures indispensably necessary to enable them to live in a 
manner suitable to men, yet she has not imposed on them any parti- 
cular obligation to unite in civil society, properly so called: and if they 
all obeyed the injunctions of that good parent, their su1y*ection to the 
restraints of civil society would be unnecessary. It is true, that as 
there does not exist in mankind a disposition voluntarily to observe 
towards each other the rules of the law of nature, they have had re- 
course to a political association, as the only adequate remedy against 
the depravity of the majority — the only means of securing the condition 

* In the Ylllth part of his Law of Nature, and in his Law of Nations. 
B 



XIY PREFACE. 

of the good, and repressing the wicked : and the law of nature itself 
approves of this establishment. But it is easy to perceive that the civic 
association is very far from being equally necessary between nations, 
as it was between individuals. We cannot, therefore, say, that nature 
equally recommends it, much less that she has prescribed it. Indivi- 
duals are so constituted, and are capable of doing so little by themselves, 
that they can scarcely subsist without the aid and the laws of civil society 
But, as soon as a considerable number of them have united under the 
same government, they become able to supply most of their wants ; and 
the assistance of other political societies is not so necessary to them as 
that of individuals is to an individual. These societies have still, it is 
true, powerful motives for carrying on a communication and commerce 
with each other ; and it is even their duty to do it ; since no man can, 
without good reasons, refuse assistance to another man. But the law 
of nature may suffice to regulate this commerce, and this correspondence. 
States conduct themselves in a different manner from individuals. It 
is not usually the caprice or blind impetuosity of a single person that 
forms the resolutions and determines the measures of the public : they 
are carried on with more deliberation and circumspection : and, on dif- 
ficult or important occasions, arrangements are made and regulations 
established by means of treaties. To this we may add, that independ- 
ence is even necessary to each state, in order to enable her properly 
to discharge the duties she owes to herself and to her citizens, and to 
govern herself in the manner best suited to her circumstances. It is, 
therefore, sufficient (as I have already said) that nations should conform 
to what is required of them by the natural and general society esta- 
lished between all mankind. 

But, says Monsieur Wolf, a rigid adherence to the law of nature 
cannot always prevail in that commerce and society of nations ; it must 
undergo various modifications, which can only be deduced from this 
idea of a kind of great republic of nations, whose laws, dictated by 
sound reason, and founded on necessity, shall regulate the alterations 
to be made in the natural and necessary law of nations, as the civil laws 
of a particular state determine what modifications shall take place in 
the natural law of individuals. I do not perceive the necessity of this 
ccnfc'equence ; and I flatter myself that I shall, in the course of this 
work, be able to prove, that all the modifications, all the restrifctions, — 
in a word, all the alterations which the rigour of the natural law must 
be made to undergo in the affairs of nations, and from which the volun- 
tary law of nations is formed, — to prove, I say, that all these alterations 
are deducible from the natural liberty of nations, from the attention due 
^o their common safety, from the nature of their mutual correspondence, 
their reciprocal duties, and the distinctions of their various rights, in- 
ternal and external, perfect and imperfect, — by a mode of reasoning 
nearly similar to that which Monsieur Wolf has pursued, with respect 
to individuals, in his treatise on the law of nature. 

In that treatise it is made to appear that the rules which, in conse- 
quence of the natural liberty of mankind, must be admitted in ques- 
tions of external right, do not cancel the obligation which the internal 
right imposes on the conscience of each individual. It is easy to apply 



PREFACE. XV 

this doctrine to nations, and, by carefully drawing the line of distinc- 
tion between the internal and external right — ^between the necessary 
and the voluntary law of nations — to teach them not to indulge them- 
selves in the commission of every act which they may do with impunity, 
iinless it be approved by the immutable laws of justice and the voice 
of conscience. 

Since nations, in their transactions with each other, are equally bound 
to admit those exceptions to, and those modifications of, the rigour of 
the necessary law, whether they be deduced from the idea of a great 
republic of which all nations are supposed to be the members, or derived 
from the source from whence I propose to draw them, — there can be no 
reason why the system which thence results should not be called the 
Voluntary Law of nations, in contradistinction to the necessary^ inter- 
nal, and consciential law. Names are of very little consequence : but 
it is of considerable importance carefully to distinguish these two kinds 
of law, in order that we may never confound what is just and good in 
itself, with what is only tolerated through necessity. 

The necessary and the voluntary laws of nations are therefore both 
established by nature, but each in a different manner : the former, as a 
sacred law which nations and sovereigns are bound to respect and follow 
in all their actions ; the latter, as a rule which the general welfare and 
safety oblige them to admit in their transactions with each other. The 
necessary law immediately proceeds from nature ; and that common mo- 
ther of mankind recommends the observance of the voluntary law of 
nations, in consideration of the state in which nations stand with respect 
to each other, and for the advantage of their affairs. This double law, 
founded on certain and invariable principles, is susceptible of demon- 
stration, and will constitute the principal subject of this work. 

There is another kind of law of nations, which authors call arbi- 
trary^ because it proceeds from the will or consent of nations. States, 
as well as individuals, may acquire rights and contract obligations, by 
express engagements, by compact and treaties ; hence results a conven- 
tional law of nations, peculiar to the contracting powers. Nations may 
also bind themselves by their tacit consent : upon this ground rest all 
those regulations which custom has introduced between dlfferej^ states, 
and which constitute the uBoge of nations, or the law of natioraRfeunded 
on custom. It is evident that this law cannot impose any obligation 
except on those particular nations who have, by long use, given their 
sanction to its maxims : it is a peculiar law, and limited in its operations, 
as the conventional law ; both the one and the other derive all their obli- 
gatory force from that maxim of the natural law which makes it the duty 
of nations to fulfil their engagements, whether express or tacit. The same 
maxim ought to regulate the conduct of states with regard to the trea- 
ties they conclude and the customs they adopt. I must content myself 
with simply laying down the general rules and principles which the law 
of nature furnishes for the direction of sovereigns in this respect. A 
particular detail of the various treaties and customs of different states 
belongs to history, and not to a systematic treatise on the law of nations. 

Such a treatise ought, as we have already observed, principally to 
consist in a judicious and rational application of the principles of the 



XVI PREFACE. 

• 

law of nature to the affairs and conduct of nations and soyereigtoa. 
The study of the law of nations supposes therefore a previous knowledfi 
of the ordinary law of nature ; and, in fact, I proceed on the suppositipa 
that my readers are already, to a certain degree at least, possessed tf 
that knowledge. Nevertheless, as it is not agreeable to readers in gb^ 
neral to be obliged to recur to other authorities for proofs of what an 
author advances, I have taken care to establish, in a few words, the 
most important of those principles of the law of nature which I intend 
to apply to nations. But I have not always thought it necessary to 
trace them to their primary foundations for the purpose of demonstra- 
tion, but have sometimes contented myself with supporting them by 
common truths which are acknowledged by every candid reader, without 
carrying the analysis any farther. It is sufficient fox me to persuade, 
and for this purpose to advance nothing as a principle that will not 
readily be admitted by every sensible man. 

The law of nations is the law of sovereigns. It is principally for them, 
and for their ministers, that it ought to be written. All mankind are 
indeed interested in it ; and, in a free country, the study of its maxims 
is a proper employment for every citizen ; but it would be of little con- 
sequence to impart the knowledge of it only to private individuals, 
who are not called to the councils of nations, and who have no influence 
in directing the public measures. If the conductors of states, if all 
those who are employed in public affairs, condescended to apply seri- 
ously to the study of a science which ought to be their law, and, as it 
were, the compass by which to steer their course, what happy effects 
might we not expect from a good treatise on the law of nations ! We 
every day feel the advantages of a good body of laws in civil society: — 
the law of nations is, in point of importance, as much superior to the 
civil law, as the proceedings of nations and sovereigns are more mo- 
mentous in their consequences than those of private persons. 

But fatal experience too plainly proves how little regard those who 
are at the head of affairs pay to the dictates of justice, in conjunctures 
where they hope to find their advantage. Satisfied with bestowing their 
attention on a system of politics which is often false, since often unjust, 
the generality of them think they have done enough when they have 
thorougmy studied that. Nevertheless, we may truly apply to states a 
maxim which has long been acknowledged as true with respect to indi- 
viduals, — ^that the best and safest policy is that which is founded on 
virtue. Cicero, as great a master in the art of government as in elo- 
quence and philosophy, does not content himself with rejecting the vul- 
gar maxim, that '^ a state cannot be happily governed without commit- 
ting injustice ;" he even proceeds so far as to lay down the very reverse 
of the proposition as an invariable truth, and maintains, that " without 
a strict attention to the most rigid justice, public affairs cannot be ad- 
vantageously administered.'** 

Providence occasionally bestows on the world kings and ministers 
whose minds are impressed with this great truth. Let us not renounce 

* Nihil est quod adhuc de republic^ putem injuria non posso ; sed hoo ▼erisj^mum^ sine 
dictam, et quo powim longius progredi, nisi sit siimmd justitisl rempublioam regi non posse, 
oonfirmatum, non mode falsum esse istad, sine Cicero, Fra^ent ex lib. de llepublic&. 



PREFACE. mi 

the pleasing hope that the number of those wise conductors of nations 
ifill one day be multiplied ; and in the interim let ns, each in his own 
sphere, exert onr best efforts to accelerate the happy period. 

It is principally with a view of rendering my work palatable to those 
by whom it is of the most importance that it should be read and relished, 
that I have sometimes joined examples to the maxims I advance : and 
in that idea I have been confirmed by the approbation of one of those 
ministers who are the enlightened friends of the human race, and who 
alone ought to be admitted into the councils of kings. But I have been 
sparing in the use of such embellishments. Without ever aiming at a 
vain parade of erudition, I only sought to afford an occasional relaxation 
to the reader's mind, or to render the doctrine more impressive by an 
example, and sometimes to show that the practice of nations is conform- 
able to the principles laid down : and, whenever I found a convenient 
opportunity, I have, above all things, endeavoured to inspire a love of 
virtue, by showing, from some striking passage of history, how amiable 
it is, how worthy of our homage in some truly great men, and even pro- 
ductive of solid advantage. I have quoted the chief part of my exam- 
ples from modern history, as well because these are more interesting, 
as to avoid a repetition of those which have been already accumulated 
by Grotius, Puffendorf, and their commentators. 

As to the rest, I have, both in these examples and in my reasonings, 
studiously endeavoured to avoid giving offence ; it being my intention 
religiously to observe the respect due to nations and sovereign powers : 
but I have made it a still more sacred rule to respect the truth, and 
the interests of the human race. If among the base flatterers of despotic 
power, my principles meet with opponents, I shall have on my side the 
virtuous man, the friend of the laws, the man of probity, and the true 
citizen. 

I should prefer the alternative of total silence, were I not at liberty 
in my writings to obey the dictates of my conscience. But my pen lies 
under no restraint, and I am incapable of prostituting it to flattery. I 
was born in a country of which liberty is the soul, the treasure, and the 
fundamental law ; and my birth qualifies me to be the friend of all 
nations. These favourable circumstances have encouraged me in the 
attempt to render myself useful to mankind by this work. I felt con- 
scious of my deficiency in knowledge and abilities : I saw that I was 
nndertaking an arduous task ; but I shall rest satisfied if that class of 
readers whose opinions are entitled to respect, discover in my labours 
the traces of the honest man and the good citizen. 



b2 



1 



CONTENTS. 



PRELIMINARIES. 

Idea and General Principles of the Law ofNoHom. 

SmL Paae 

1 What is meant by a nation or state . . .It 

2 It is a moral person ...... t&. 

8 Definition of the law of nations . . . . . ih. 

4 In what light nations or states are to be considered . . Ivi 

5 To what laws nations are snbjeot . . . . , ib. 

6 In what the law of nations originally consists . , . tb. 

7 Definition of the necessary law of nations .... Iviii 

8 It is immutable ...... t6. 

9 Nations can make no change in it^ nor dispense with the obligations 

arising from it ...... i&. 

10 Society established by nature between all mankind . . liz 

11 And between all nations . . Iz 

12 The object of this society of nations . . . . Ixi 

13 General obligation imposed by it . . . , %b. 

14 Explanation of this observation . . , ib. 

15 The second general law is the liberty and independence of nations Ixii 

16 Effect of that liberty . . . . , ib. 

17 Distinctions between internal and external^ perfect and imperfect obli- 

gations- and rights . . . , ib. 

18 Equality of nations ...... Ixiii 

19 Effect of that equality . . . , ih. 

20 Each nation is mistress of her own actions, when they do not affect 

the perfect rights of others . . . . , ib, 

21 Foundation of the voluntary law of nations . . . t&. 

22 Right of nations against the infractors of the law of nations . . Ixiv 

23 Measure of that right . . . . . . ib. 

24 Conventional law of nations, or law of treaties . . Ixv 

25 Customary law of nations . . . ib. 

26 General rule respecting that law . . . ib. 

27 Positive law of nations ...... Ltvi 

28 General maxim respecting the use of the necessary and the voluntary 

law ........ ib. 



COKTBHTS. 



rl 



BOOK L 

OF NATIONS CONSIDERED IN THEMSELVES. 

CHAP. I. 

Of NatUyM or Sovereign States. 

Sect. 

1 Of the state, and of soverei^ty . 

2 Authority of the body politic over the members 

3 Of the several kinds of goyernment . 

4 What are sovereign states 

5 States bound by unequal alliance 

6 or by treaties of protection 

7 Tributary states .... 

8 Feudatory states .... 

9 Two states subject to the same prince 

10 States forming a federal republic 

11 A state that has passed under the dominion of another 

12 Objects of this treatise .... 



Page 

1 

%b. 

2 

i6. 

. %b. 

%b, 

3 

i&. 

. xh. 

xb, 

. xb. 

4 



CHAP. II. 
General Principles of the Duties of a Nation tcwards herself 

13 A nation ought to act agreeably to her nature . . .4 

14 Preservation and perfection of a nation . . . . t6. 

15 End of civil society . . . . .5 

16 A nation is under an obligation to preserve herself . . %b. 

17 and to preserve her members . . . xb. 

18 A nation has a right to everv thing necessary for her preservation 6 

19 She ought to avoid every thmg that might occasion her destruction • xb. 

20 Her right to every thing that may promote this end . . xb. 

21 A nation ought to perfect herself and her condition . . xb. 

22 and to avoid every thing contrary to her perfection . 7 

23 The right she derives from these obligations . . . xb. 

24 Examples ....... tft. 

25 A nation ought to know herself , , .8 



CHAP. m. 

Of the Constitution of a State, and the Ditties and Bights of a Nation 
in thcU respect. 

26 Of the public authority . . . . . .8 

27 What i^ the constitution of a state . . . . t&. 

28 The nation ought to choose the best constitution . . .9 

29 Political, fundamental, and civil laws . . . . i6. 

30 Support of the constitution, and obedience to the laws . . i6. 

31 Eight of a nation with respect to her constitution and government 10 



CONTENTS. XXL 

Sect, Pag€ 

32 She may reform the goyemment .10 

33 and may alter the constitation . . . i6. 

34 Of the legislative power^ and whether it can alter the constitation . 11 

35 The nation ought not to attempt it without great caution 12 

36 She is the judge of all disputes relative to the government . ib. 

37 No foreign power has a right to interfere . tb, 

CHAP. IV. 
0/ the Sovereign, his Obligations, and his Rights, 

38 Of the sovereign . .12 

39 He is solely estahlished for the safety and advantage of society . 13 

40 His representative character . .14 

41 He is intrusted with the obligations of the nation, and invested with 

her rights . . . , tb. 

42 His duty with respect to the preservation and perfection of the nation ib, 

43 His rights in that respect . . ib, 

44 He ought to know the nation ..... 15 

45 Extent of his power : — ^prerogatives of majesty . , ib, 

46 The prince is bound to respect and support the fundamental laws ih, 

47 He may change the laws not fundamental . .16 

48 He is l)ound to maintain and observe the existing laws . ih, 

49 In what sense he is subject to the laws . . , ib, 

50 His person is sacred and inviolable .... 17 

51 But the nation may repress a tyrant, and renounce her allegiance to him ib, 

52 Arbitration between the king and his subjects ... 20 

53 Obedience which subjects owe to a sovereign . .21 

54 In what cases they may resist him .... ib, 

55 Ministers . . .23 

CHAP. V. 
Of States, Elective, Successive, or Hereditary, and of those called Patrimonial, 

56 Elective states . . . .23 

57 Whether elective kings be real sovereigns ... 24 

58 Successive and hereditary states : — origin of the right of succession . ib, 

59 Other origin of that right . . , , . ib, 

60 Other sources, which still amount to the same thing . 24 

61 A nation may change the order of the succession . ib. 

62 Renunciations . . .25 

63 The order of succession ought commonly to be observed . 26 

64 Regents .... .... 27 

65 Indivisibility of sovereignties . . ib. 

66 Who are to decide disputes respecting the succession to a sovereignty ib. 

67 The right of succession not to depend on the judgment of a foreign 

power . . . .29 

68 States called patrimonial ..... 30 

69 Every true sovereignty is unalienable .31 

70 Duty of a prince who is empowered to nominate his successor 32 

71 His nomination must be sanctioned by at least the tacit ratification of 

the people ....... iZ>. 



XXIX CONTENTS. 

CHAP. VI. 

Principal Objects of a good Government; and first j to provide for the Ihos^ 

sities of the Nation, 

Sect, ^^^ 

72 The object of society points out the duties of the sovereign : — ^he is 

bound to procure plenty . . . . . .33 

73 to take care that there be a sufficient number of workmen ih. 

74 to prevent the emigration of those that are useful ih. 

*lb Emissaries who entice them away .... 34 

76 Labour and industry must be encouraged .... ib. 

CHAP. vn. 

Of the Cultivation of the Soil. 

77 Utility of Agriculture . . . . . .34 

78 Regulations necessary in that respect : — ^for the distribution of land ib. 

79 for the protection of husbandmen . . . .36 

80 Husbandry ought to be placed in an honourable light . . ib, 

81 Cultivation of the soil a natural obligation .... ib. 

82 Public granaries ...... 36 

CHAP. vni. 

Of Commerce. 



. 37 
ib. 

. ib. 
ib. 

. 38 
of purchasing ib. 



83 Domestic and foreign trade . 

84 Utility of domestic trade 

85 Utility of foreign trade 

86 Obligation to cultivate domestic trade 

87 Obligation to carry on foreign trade 

88 Foundation of the laws of commerce : — aright 

89 Right of selling . . . ' . . . ib. 

90 Prohibition of foreign merchandises .... 39 

91 Nature of the right of purchasing . . . . ib. 

92 Each nation to determine for herself how she will carry on commerce ib. 

93 How a nation acquires a perfect right to a foreign trade 40 

94 Simple permission to carry on trade .... ib. 

95 Whether commercial rights be subject to prescription . ib. 

96 Imprescriptibility of rights founded on treaty ... 41 

97 Monopolies^ and trading companies with exclusive privileges 42 

98 Balance of trade^ and attention of government in that respect 43 

99 Import duties . . . ib. 

CHAP. IX. 
Of the Care of the Public Ways; and of Tolls. 

100 Utility of highways^ canals, &c. . .43 

101 Duty of government in that respect .... ib. 

102 Its right in that respect . . .44 

103 Foundation of the right to demand toll . ib. 

104 Abuse of that right .* . . ib. 



CONTBITPS, xxiii 

CHAP. X. 
Of Money and Exchange. 

Sect. Page 

105 Establishment of money . . .45 

106 Duty of the nation or prince with respect to the coin ib. 

107 Their rights in that respect . . . .46 

108 How one nation may injure another in the article of coin . 47 

109 Exchange^ and commercial laws . . t&. 

CHAP. XI. 

Second Object of a good Government^ — to procure the true Happiness of a 

Nation. 

110 A nation is bound to labour after her own happiness . 47 

111 Instruction ....... t5. 

112 Education of youth . . .48 

113 Arts and sciences ...... t^. 

114 Freedom of philosophical discussion .49 

115 Love of virtue, and abhorrence of vice, to be excited . .61 

116 The nation may hence discover the intention of her rulers ib. 

117 The nation, or public person, bound to perfect her understanding and will 52 

118 and to direct the knowledge and virtues of the citizens to 

the welfare of the society ..... 52 

119 Love for their country .53 

120 in individuals . . ib. 

121 in the nation or state itself, and in the sovereign . ib. 

122 Definition of the term " country*' .... ib. 

123 How shameful and criminal to injure our country . 54 

124 The glory of good citizens : — Examples ib, 

CHAP. xn. 

Of Piety and Religion. 

125 Piety 55 

126 It ou^ht to be attended with knowledge - » . ib. 

127 Religion, internal and external .56 

128 Riffhts of individuals : — ^liberty of conscience . . ib. 

129 Public establishment of religion : — ^rights and duties of the nation ib. 
130 when there is as yet no established religion 57 

131 when there is an established religion ib. 

132 Duties and rights of the soverei^ with respect to religion 58 

133 where there is an established religion .59 

134 Objects of his care, and the means he ought to employ 60 

135 Toleration . . ib. 

136 How the prince is to act when the nation is resolved to change her 

religion . . . . . . . ih. 

137 Difference of religion does not deprive a prince of his crown 61 

138 Duties and rights of the sovereign reconciled with those of the subjects ih. 

139 The sovereign ought to have the inspection of the affairs of religion, 

and authority over those who teach it . . . .62 

140 He is bound to prevent the abuse of the established religion 63 

141 His authority over the ministers of religion ib. 



XZir CONTBNTS. 

Sect. iVM 

142 Nature of that authority . . . o4 

143 Rule to be observed with respect to ecclesiastics . . A. 

144 Kecapitulation of the reasons which establish the sovereign's rights in 

matters of religion, ib. — Authorities and examples . 66 

145 Pernicious consequences of the contrary opinion . . . «tu 

146 Abuses particularised. — 1. The power of the popes . 66 

147 2. Important employments conferred by a foreign power 68 

148 8. Powerful subjects dependent on a foreign court . %b. 

149 4. Celibacy of the priests : — Convents . . .69 

150 5. Enormous pretensions of the clergy : — ^Pre-eminence . 70 

151 6. Independence; immunities . . . .71 

152 7. Immunity of church possessions ... 72 

153 8. Excommunication of men in office . .73 

154 9. and of sovereigns themselves ... 74 

155 10. The clergy drawing every thing to themselves, and inter- 

rupting the course of justioe ... 75 

156 11. Money drawn to Home . . .76 

157 12. Laws and customs inimical to the welfare of states . %b. 



CHAP. xm. 

0/ Justice and Polity. 

158 A nation is bound to make justice flourish .77 

159 to establish good laws .... %b, 

160 to enforce them . . .78 

161 Functions and duties of the prince in that respect , ib. 

162 How he is to dispense justice . . . . ib. 

163 His duty to appoint upright and enlightened judges . . ib. 

164 The ordinary courts shomd determine causes relating to the revenue 79 

165 Necessary to establish supreme courts, from whose sentence there shall 

be no appeal . . . . . ib. 

166 The prince Dound to observe the forms of justice 80 

167 to support the authority of the judges, and enforce their 

decrees ....... ih, 

168 Distributive justice : — distribution of employments and rewards . ib. 

169 Punishment of transgressors : — ^foundation of the right of punishing 81 

170 Criminal laws . . . . ib. 

171 Degree of punishment ..... 82 

172 Execution of the laws . ib. 

173 Bight of pardoning ...... 83 

174 Internal ^lice . . . . ib. 

175 Duel or smgle combat ..... 84 

176 Means of putting a stop to that disorder .... ib. 

CHAP. XIV- 

Third Objecto/agood Government, — to fortify itself againU External AUclcIcs. 

177 A nation ought to fortify herself against external attacks . 87 

178 National strength ...... t&. 

179 Increase of popuktion . . ^ . ib. 

180 Valour ....... 88 

181 Other military virtues . . . .89 



C0NTSNT8. XXV 

8eeL Pag€ 

182 Riches ....... 89 

183 Public revenues and taxes . . . • . 90 

184 The nation ought not to increase her power by unlawful means . ib. 

185 Power is but relative ...... i6. 



CHAP. XV. 
Of ike Glory of a NcUion, 

186 Advantages of ^lory . . . .91 

187 Duty of the nation. — How true glory is acquired . . i6. 

188 Duty of the prince . . , . . t6. 

189 Duty of the citizens ...... 92 

190 Example of the Swiss . . . . t6. 

191 Attacking the glory of a nation is doing her an injury . . 93 

CHAP. XVL 
Protection nought hy a Natiouy and her voluntary mbmission to a Foreign Power, 

192 Protection . . .98 

193 Voluntary submission of one nation to another . . 94 

194 Several kinds of submission . . . ^ , ib, 

195 Right of the citizens when the nation submits to a foreign power t6. 

196 These compacts annulled by the failure of protection . . 95 

197 or by the infidelity of the party protected . . ifc. 

198 and by the encroachments of the protector . . ib, 

199 How the right of the nation protected is lost by her rilenoe 96 

CHAP. xvn. 

How a NcUion may s^mrcUe herself from the State of which she is a Memiber, 
and renounce her Allegiance to her Sovereign when she is not protected. 

200 Difference between the present case and those in the preceding chapter 96 

201 Duty of the members of a state, or subjects of a prince, who are in 

danger . . . . .97 

202 Their right when they are abandoned ....{&. 

CHAP. xvm. 

Establishment of a Nation in a Country. 

203 Possession of a country by a nation .98 

204 Her ri^ht over the part in her possesion . ib, 

205 Acquisition of the sovereignty in a vacant country . .99 

206 Another manner of acquiring the empire in a free country ib, 

207 How a nation acquires the property of a desert country . . ib. 

208 A question on this subject ..... i&. 

209 Whether it be kwful to take possession of part of a country inhabited 

only by a few wandering tribes .... 100 

210 Colonies . . . .101 



XXVI CONTENTS. 

CHAP. XIX. 
Of our Native Country, and various Matters relating to it 

Sect. ' Pt§9 

211 What is our oountary ...... 101 

212 Citizens and natives ...... i^. 

213 Inhabitants . . . . .102 

214 Naturalization ...... t6. 

215 Citizens' children bom in a foreign country . . . i6. 

216 Children born at sea . . . . . . t5. 

217 Children bom in the armies of the state, or in the house of its minister 

at a foreign court ...... 103 

218 Settlement . . . . . . ib. 

219 Vagrants ....... ib. 

220 Whether a person may quit his country .... tb. 

221 How a person may a1:»ent himself for a time . . 105 

222 Variation of the political laws in that respect : — ^they must be obeyed ib. 

223 Cases in which a citizen has a right to quit his country . . tb. 

224 Emigrants . . . . . . .106 

225 Sources of their right ...... ib. 

226 If the sovereign isd&inges their right, he injures them . 107 

227 Supplicants ....... ib. 

228 Exile and banishment . . . . . ib. 

229 The exile and the banished man have a right to live somewhere 108 

230 Nature of that right . . . . . . ib. 

231 Duty of nations towards them ..... t6. 

232 A nation cannot punish them for faults committed out of her territories 109 

233 except such as affect the common safety of mankind . ib. 

CHAP. XX. 

Public, Common, and Private Property. 

234 What the Romans called res communis .... 109 

235 Aggregate wealth of a nation, and its divisions . ih. 

236 Two modes of acquiring public property . . . . 110 

237 The income of the public property is naturally at the sovereign's dis- 

posal ....... ib. 

238 The nation may grant him the use and property of her common pos- 

sessions . . . . . . . . ib. 

239 or allow him the domain, and reserve to herself the use of 

them ....... t6. 

240 Taxes .111 

241 The nation may reserve to herself the right of imposing them ib. 

242 Sovereign possessing that power . . . . ib. 

243 Duties of the prince with respect to taxes . . .112 

244 Eminent domain annexed to the sovereignty . . ib. 

245 Dominion over public property ..... 113 

246 The sovereign may make laws respecting the use of things possessed 

in common . . . . . . ib. 

247 Alienation of the property of a corporation . . ib. 

248 Use of common property ...... 114 

249 How each member is to enjoy it .... ib. 

250 Right of anticipation in the use of it . . . ib. 

251 The same right in another case , . , . ib. 



CONTENTS. XXVU 

SecL Page 

252 Preservation and repairs of common possessions . . 115 

253 Duty and right of the sovereign in that respect . tb. 

254 Private property . t6. 

255 The sovereign may suhjeot it to regulations of police ib, 

256 Inheritances .116 

CHAP. XXL 

0/the Alienation of the Public Property, or the Domain, and that of a Part 

of the State, 

257 The nation may alienate her public property . .116 

258 Duties of the nation in that respect .... ib. 

259 Duties of the prince ...... 117 

260 He cannot alienate the public property ib, 

261 The nation may give him a right to do it . . . . t&. 

262 Kules on that subject with respect to treaties between nation and nation ih, 

263 Alienation of a part of the state ..... 118 

264 Rights of the dismembered party .... ib. 

265 Whether the prince has power to dismember the state . 119 



CHAP. xxn. 

Of Rivers, Streams, and Lakes. 

266 A river that separates two territories .... 120 

267 Bed of a river which is dried up or takes another course . 121 

268 Bight of alluvion ...... t&. 

269 Whether alluvion produces any change in the right to a river ib, 

270 Consequence of a river changing its bed .... 122 

271 Works tending to turn the current .... %b, 

272 or genendly prejudicial to the rights of others . ib, 

273 Rules relative to interfering rights .... ib, 

274 Lakes 123 

275 Increase of a lake ...... i5. 

276 Land formed on the banks of a lake .... 125 

277 Bed of a lake dried up .... ib, 

278 Jurisdiction over lakes and rivers .... ib, 

CHAP. xxm. 

Of the Sea, 

279 The sea, and its use . . . 125 

280 Whether the sea can be possessed, and its dominion appropriated ib, 

281 Nobody has a right to appropriate to himself the use of the open sea ib, 

282 A nation attempting to exclude another does her an injury 126 

283 She even does an injury to all nations , ^ . . . ib, 

284 She may acquire an exclusive right by treaties . . ib, 

285 but not by prescription and long use . . 127 

286 unless by virtue of a tacit agreement . ib, 

287 The sea near the coasts may become property . . . ib. 



XrviU CONTKSTS. 

SeeL Py^ 

288 Another reason for appropriating the sea bordering on the ooasts . In 

289 How far that possession maj extend .... A. 

290 Shores and ports ....... 1S9 

291 Bays and straits . . . . . . «&. 

292 Straits in particular . . .180 

293 Right to wrecks . . . . . .A. 

294 A sea inclosed within the territories of a nation . , Hb. 

295 The parts of the sea possessed by a soyereign are within his jarisdictMB 181 



BOOK 11. 

OF A NATION CONSIDERED IN HER RELATION TO OTHER STATES. 

CHAP. I. 

Of the common Duties of a NatUm towards other States, or the Offices of 
Humanity between Nations. 

1 Foundation of the common and mutual duties of nations . 183 

2 Offices of humanity, and their foundation . 134 

3 General principles of all the mutual duties of nations . 135 

4 Duties of a nation for the preservation of others %b, 

5 She is bound to assist a nation afflicted with famine or any other 

calamity ....... 136 

6 She is bound to contribute to the perfection of other states . . %b, 

7 but not by force ..... 137 

8 The right to require the offices of humanity . 138 

9 The right of judging whether they are to be granted . t5. 

10 A nation is not to compel another to perform those offices of which the 

refusal is no wrong ...... t^. 

11 Mutual love of nations . . . . , xb, 

12 Each nation is bound to cultivate the friendship of others . ih, 

13 to perfect herself, with the view to me advantage of others, 

and to set .tiiem good examples .... 139 

14 to take care of their glory , ih. 

15 Difference of religion ought not to preclude the offices of humanity ih, 

16 Kule and measure of the offices of humanity . . . 140 

17 Particular limitation with respect to the prince . . 141 

18 No nation ought to injure others * . f6. 

19 Offences ....... 142 

20 Bad custom of the ancients ..... 148 

CHAP. n. 

Of the Mutual Commerce between Nations, 

21 (General obligation of nations to carry on mutual commerce . . 143 

22 They are bound to favour trade .... 144 

23 Freedom of trade ....:. t6. 



i 



CONTENTS. Xxix 

Act Pom 

24t Bi^t of trading belonging to nations .... 144 

25 Each nation is sole judge of the propriety of commerce on her own part th. 

26 N^sessitj of commercial treaties ..... 145 

27 Oeneral rule concerning those treaties . . . . t6. 

28 Duty of nations in making such treaties .... %b. 

29 Perpetual or temporary treaties, or treaties revocable at pleasure tb, 

30 Notliing contrary to the tenor of a treaty can be granted to a third party 146 

31 How far lawful to give up by treaty the liberty of trading with other 

nations . . . . . , ib, 

82 A nation may restrict her commerce in favour of another nation . ib, 

83 A nation may appropriate to herself a particular branch of trade . 147 

84 Consuls ........ t6. 



CHAP. m. 

0/ the Dignity and Egudlily of Natumsy--^/ Titles^ — and other Marks 

of Honour, 

35 Dignity of nations or sovereign states .... 149 

36 Their equality . ... . . . . ib. 

37 Precedency . . . . . . , ib, 

38 The form of government is foreign to this question . . 150 

39 A state ought to retain her rank^ notwithstanding any changes in the 

form of her government . . . . ib, 

40 Treaties and established customs are to be observed in that respect ib, 

41 Name and honours given by the nation to her conductor . . 151 

42 Whether a sovereign may assume what title and honours he pleases 152 

43 Bight of other nations in that respect . ... ib, 

44 Their duty ....... i6. 

45 How titles and honours may be secured .... 153 

46 We must conform to general custom .... ib, 

47 Mutual respect due by sovereigns to each other . . ib. 

48 How a sovereign ought to maintain his dignity . . . 154 



CHAP. IV. 

Of the Right to Security j and the Effects of the Sovereignty and Indq>endence 

of Nations, 

49 Right to security ....... 154 

50 It produces the right of resistance .... ib, 

51 and that of obtaining reparation . . . .155 

52 and the right of punishing .... ih, 

53 Right of all nations against a mischievous people . . . ih,^ 

54 No nation has a right to interfere in the government of another state ib, 

55 One sovereign cannot make himself judge of the conduct of another ib, 

56 How far lawful to interfere in a quarrel between a sovereign and his 

subjects ....... 156 

57 Right of opposing the interference of foreign powers in the afibirs of 

government ....... 157 

58 The same right with respect to religion . . , %b, 

59 No nation can be constrained in religious concerns . . 158 

60 Offices of humanity in these matters : — ^missionaries . ib, 

c2 



XZX CONTENTS. 

61 Circumspection to be used • . • . • • Ij 

62 What a sovereign may do in favour of those who profess his religion 

in another state ...... t5. 



CHAP. V. 

Of the Observance of Justice between Nations. 

63 Necessity of the observance of justice in human society . . 100 

64 Obligation of all nations to cultivate and observe justice t^. 

65 Eight of refusing to submit to injustice . . . tb. 

66 This right is a perfect one ..... 161 

67 It produces — the right of self-defence .... ib. 

68 the right of doing ourselves justice . . . ih. 

69 The right of punishing injustice . . . . i6. 

70 Eight of all nations against one that openly despises justice . ib, 

CHAP. VI. 

Of the Concern a Nation may have in the Actions of her Citizens, 

71 The sovereign is bound to avenge the wrongs of the state and to pro- 

tect the citizens ...... 161 

72 He must not suffer his subjects to offend other nations or their citizens 162 

73 The acts of individuals not imputable to the nation . . ib, 

74 unless she approve or ratify them . . ib, 

75 Conduct to be pursued by the offended party . . . tb, 

76 Duty of the aggressor's sovereign .... 163 

77 If he refuses justice, he becomes a party in the fault and offence . ib, 

78 Another case in which the nation is guilty of the crimes of the citizens 164 

CHAP. vn. 

Effects of the Domain, between Nations. 

79 General effects of the domain ..... 164 

80 What is comprehended in the domain of a nation . . 165 

81 The property of the citizens is the national property with respect to 

foreign states . . . . . . , ib, 

82 A consequence of that principle . . . . , ib, 

83 Connection of the domain of the nation with the sovereignty . ib, 

84 Jurisdiction ....... 166 

85 Effects of the Jurisdiction in foreign countries . . . ib, 

86 Desert and uncultivated places .... 167 

87 Duty of the nation in that respect . . . .168 
^8 Eight of possessing things that have no owner . . . tb, 
b9 Eights granted to another nation . . . . . ib, 

90 Not allowable to expel a nation from the country she inhabits • ib, 

91 nor to extend by violence the bounds of empire . . 169 

92 The limits of territories ought to be carefully ascertained . ib. 

93 Violation of territory . . . . , ib, 

94 Prohibition to enter the territory .... 170 

95 A country possessed by several nations at the same time . , ib, 

96 A country possessed by a private person . . . ib. 



CONTENTS. 



XXXI 



JShet. Page 

97 Independent families in a country .... 170 

98 Possessions of certain places only; or of certain rightS; in a vacant 

country . . . . . 171 



CHAP. vin. 

Rules respecting Foreigners, 

99 Gkneral idea of the conduct a state ought to observe towards foreigners 171 

100 Entering the territory 

101 Foreigners are subject to the laws 

102 and punishable according to the 'laws 

103 Who is the judge of their disputes 

104 Protection due to foreigners 

105 Their duties ..... 

106 To what burthens they are subject 

107 Foreigners continue members of their own nation 

108 The state has no right over the person of a foreigner 

109 nor over his property 

110 Who are the heirs of a foreigner 

111 Will of a foreigner 

112 Escheatage 

113 The right of traite foraine 

114 Immovable property possessed by an alien 

115 Marriages of aliens 

CHAP. IK 



172 

ih. 

ib. 
173 

t6. 

ib. 
174 

ib. 

ih. 
174 
175 

ih. 
176 
177 

ib. 

ib. 



Of the Rights retained by dU Nations after the Introduction of Domain 

and Property. 

116 What are the rights of which men cannot be deprived 

117 Rights still remaining from the primitive state of communion 

118 Right retained by each nation over the property of others . 

119 Right of necessity .... 

120 Right of procuring provision by force 

121 Right of making use of things belonging to others 

122 Right of carrying off women 

123 Right of passage . . . 

124 and of procuring necessaries 

125 Ri^ht of dwelling in a foreign country 

126 ThingS; of which the use is inexhaustible . 

127 Right of innocent use . 

128 Nature of that right in general 

129 and in cases not doubtful 

130 Exercise of that right between nations 

CHAP. X. 

jBow a Nation is to use her Right of Domain, in order to discharge her Duties 
towards other Nations, with reflect to the Innocent Use of Things. 

131 General duty of the proprietor ..... 183 

132 Innocent passage ...... t6. 



178 

ib. 

ib. 

ib. 
179 

ib. 

ib. 
180 

ih. 

ib. 
181 

ih. 
182 

ib. 

ib. 



XXXn CONTENTS. 

Sect, p^ 

133 Securities may be required . . . . . 1ft 

134 Passage of mercliandise • .... A. 

135 Residence in the country . . . . , Hb. 

136 How we are to act towai^ds foreigners who desire a perpetual residence 185 

137 Right accruing from a general permission . . . .A. 

138 A right granted as a favour ..... 186 

139 The nation ought to be courteous . • • . . i&. 

CHAP. XI. 
Of Usucajptwn and Prescription between jNations. 

140 Definition of usucaption and prescription .... 187 

141 Usucaption and prescription derived from the law of nature ih. 

142 What foundation is required for ordinary prescription . . 189 

143 Immemorial prescription ..... i5. 

144 Claimant alleging reasons for his silence .... 190 

145 Proprietor sufficiently showing that he does not mean to abandon his 

right . . . . . . . ih. 

146 Prescription founded on the actions of the proprietor . . (b, 

147 Usucaption and prescription take place between nations . . ib, 

148 More difficult, between nations, to found them on a presumptive desertion tb. 

149 Other principles that enforce prescription .... 191 

150 Effects of the voluntary law of nations on this subject . . ib, 

151 Law of treaties, or custom, in this matter .... 192 

CHAP. xn. 

0/ Treaties of AUiance and other Public Treaties, 

152 Nature of treaties . . . .192 

153 Compacts, agreements, or conventions . . . . i&. 

154 By whom treaties are made . i5. 

155 Whether a state under protection may make treaties . 193 

156 Treaties concluded by proxies or plenipotentiaries . . , ib, 

157 Validity of treaties ...... 194 

158 Injury does not render them void . . . . , ib, 

159 Duty of nations in that respect .... ib, 

160 Nullity of treaties which are pernicious to the state . . ib, 

161 Nullity of treaties made for an unjust or dishonest purpose . 195 

162 Whether an alliance may be contracted with those who do not profess 

the true religion >•.•.. «^. 

163 Obligation to observe treaties . . . . , ib, 

164 The violation of a treaty is an act of injustice . . . 196 

165 Treaties cannot be made contrary to those already existing . t^. 

166 How treaties may be concluded with several nations with the same view 197 

167 The more ancient ally entitled to a preference . . , ih, 

168 We owe no assistance in an unjust war . . . ib, 

169 General division of treaties ] — ^those that relate to things already due 

by the law of nature ..... t5. 

170 Collision of those treaties with the duties we owe to ourselves . 198 

171 Treaties in which we barely promise to do no injury ih, 

172 Treaties concerning things that are not naturally due : — equal treaties ib. 



CONTENTS. XXXm 

Seet, Page 

173 Obligation to preserve equality in treaties .... 199 

174 DifFerenoe between equal treaties and equal allianoes . 200 

175 Unequal treaties, and unequal alliances .... th. 

176 An alliance with diminution of sovereigntj may annul preceding 

treaties ....... 202 

177 We ought; as much as possible, to avoid making unequal alliances 203 

178 Mutual duties of nations with respect to unequu alliances . ib. 
179 in alliances where the inequality is on the side of the more 

powerful party . , ib, 

180 How inequality of treaties and alliances may be conformable to the 

law of nature ...... 204 

181 Inequality imposed by way of punishment . . 205 

182 Other kinds, of which we have spoken elsewhere . ib. 

183 Personal and real treaties . . . . t6. 

184 Naming the contracting parties in the treaty does not render it personal ib, 

185 An alliance made bv a republic is real .... ib, 

186 Treaties concluded by kings or other monarchs . . 206 

187 Perpetual treaties, and those for a certain time . . . ib. 

188 Treaties made for the king and his successors . . . ib. 

189 Treaties made for the cood of the kingdom . . . ib. 

190 How presumption ought to be founded in doubtful cases . 207 

191 The obligations and rights resulting from a real treaty pass to the 

successors ....... 208 

192 Treaties accomplished once for aU, and perfected . tb. 

193 Treaties already accomplished on the one part . . 209 

194 The personal alliance expires if one of the parties ceases to reign 211 

195 Treaties in their own nature personal .... ib. 

196 Alliance coDcluded for the defence of the kine and royal family ib. 

197 Obligation of a real alliance, when the allied king is deposed . 212 

CHAP. xin. 

0/ the DissoltUion and Renewal of Treaties. 

198 Expiration of alliances made for a limited time . 213 

199 Benewal of treaties ...... ib. 

200 How a treaty is dissolved, when violated by one ofthe contracting parties 214 

201 The violation of one treaty does not cancel another ib. 

202 The violation of one article in a treaty may cancel the whole . 215 

203 The treaty is void by the destruction of one of the contracting powers 216 

204 Alliances of a state that has afterwards put herself under the protec- 

tion of another . . . . ib. 

205 Treaties dissolved by mutual consent .... 217 

CHAP. XIV. 

Of other public Conventions, — of those that are made by Svhordinate Powers, 
— -particidarly ofthe Agreement caUed in Latin Sponsio, — and of Conven- 
ticns between the Sovereign and Private Persons. 

206 Conventions made by sovereigns ..... 218 

207 Those made by subordinate powers .... t6. 

208 Treaties concluded by a public person, without orders from the sove- 

reign, or without sufficient powers .... 219 

5 



XXXIV 



CONTBNTS. 



Sect, Page 

209 The agreement called spoMio ..... 219 

210 The state is not bound dj saoh an agreement . . 220 

211 To what the promiser is bound when it is disavowed . . ib. 

212 To what the sovereign is bound .... 223 

213 Private contracts of the sovereign .... 226 

214 Contracts made by him with private persons, in the name of the state ib. 

215 They are binding on the nation, and on his successors . . 227 

216 Debts of the sovereign and the state • . . , ib. 

217 Donations of the sovereign ..... 228 

CHAP. XV. 
0/the Faith of Treaties. 

218 What is sacred among nations ..... 229 

219 Treaties sacred between nations .... ib. 

220 The faith of treaties is sacred . . . . . ih. 

221 He who violates his treaties, violates the law of nations . ib. 

222 Right of nations against him who disregards the faith of treaties . 230 

223 The law of nations violated by the popes . . ib. 

224 This abuse authorized by princes ..... 231 

225 Use of an oath in treaties. — ^It does not constitute the obligation 232 

226 It does not change the nature of obligations . . . ib. 

227 It gives no pre-eminence to one treaty above another . . ih. 

228 It cannot give force to a treaty that is invalid . . . 233 

229 Asseverations ...... ib. 

230 The faith of treaties does not depend on the difference of religion ib. 

231 Precaution to be taken in wording treaties ib. 

232 Subterfuges in treaties . . . . . .234 

233 An evidently false interpretation inconsistent with the faith of treaties ib. 

234 Faith tacitly pledged . . . . ib. 



CHAP. XVI. 
Of Securities given for tTie Observance of Treaties. 

235 Guaranty . ... 

236 It gives the guarantee no right to interfere unasked in the execution 

of a treaty ..... 

237 Nature of the obligation it imposes 

238 The guaranty cannot impair the rights of a third party 

239 Duration of the guaranty .... 

240 Treaties with surety .... 

241 Pawns, securities, and mortgages . 

242 A nation's right over what she holds as a pledge 

243 How she is obliged to restore it . 

244 How she may appropriate it to herself . 

245 Hostages ...... 

246 What right we have over hostages 

247 Their liberty alone is pledged 

248 When they are to be sent back 

249 Whether they may be detained on any other account 

250 They may be detained for their own actions 

251 Of the support of hostages 



235 





236 




. ib. 




ib. 




. 237 




ib. 




. t6. 




ib. 




. 238 




ib. 




. ib. 




289 




. ib. 




ib. 




ib. 


* . . 240 


, 


ib. 



CONTENTS. ZXXY 

SeeL Pom 

252 A subject cannot refuse to be a hostage .... 241 

253 Bank of the hostages ...... i6. 

254 They ought not to make their escape . . . t&. 

255 Whether a hostage who dies is to be replaced . . . 242 

256 Substitute for a hostage . . . . . ib, 

257 Hostage succeeding to the crown . . . , ib, 

258 The liability of the hostage ends with the treaty . . ib. 

259 The violation of the treaty is an injury done to the hostages ib. 

260 The fate of the hostage when he who has given him f&ils in his en- 

gagements ....... 243 

261 Bight founded on custom . . . . . ib. 

CHAP. xvn. 

0/ihe Interpretation of Treaties. 

262 Necessity of establishing rules of interpretation . ' . . 244 

263 First general maxim — ^it is not allowable to interpret what has no need 

of interpretation ... . , . ib. 

264 Second general maxim — if he who could and ou^ht to have explained 

himself, has not done it, it is to his own detriment . 245 

265 Third general maxim — ^neither of the contracting parties has a right 

to interpret the treaty according to his own fancy . ib. 

266 Fourth general maxim — ^what is sufficiently declared is to be taken for 

true . . . . . . . ib. 

267 We ought to attend rather to the words of the person promising, than 

to those of the party stipulating .... ib. 

268 Fifth general maxim — the interpretation ought to be made according 

to certain rules ...... 246 

269 The £uth of treaties imposes an obligation to follow those rules 247 

270 General rule of interpretation . . . . ib. 

271 The terms are to be explained conformably to common usage . 248 

272 Interpretation of ancient treaties . . . ih. 

273 Quibbles on words ...... 249 

274 A rule on that subject . . . . tb. 

275 Mental reservations ...... ib. 

276 Interpretation of technical terms . . . . ib. 

277 Terms whose signification admits of degrees . . 250 

278 Figurative expressions . i . . . , ib. 

279 Equivocal expressions . . . . ib. 

280 The rule for these two cases ..... 251 

281 Not necessary to give a term the same sense everywhere in the same 

deed . . . . . . . .252 

282 We ought to reject every interpretation which leads to an absurdity ib. 

283 or which renders the act null and void of effect . . 258 

284 Obscure expressions interpreted by others more clear in the same 

author ........ 254 

285 Interpretation founded on the connection of the discourse . ib. 

286 Interpretation drawn from the connection and relation of the things 

themselves ....... 255 

287 Interpretation founded on the reason of the deed . . . 256 

288 Where many reasons have concurred to determine the will . ib. 

289 What constitutes a sufficient reason for an act of the will . . 257 



zxxn 



COMTBNTfl. 



Seet. 

290 Eztensiye interpretation founded on the reason of the act . 

291 Frauds tending to elude laws or promises 

292 Bestrictive interpretation ...... 

293 Its use^ in order to avoid &lling into absurdities, or into what is un- 

lawful ........ 

294 or what is too severe and burthensome 

295 How it ought to restrict the signification agreeably to the subject 

296 How a change happening in the state of things may form an exception 

297 Interpretation of a deed in unforeseen cases 

298 Reasons arising from the possibility^ and not the existence of a thing 

299 Expressions susceptible of an extensive and a limited sense 

300 Things favourable, and things odious .... 
801 What tends to the common advantage, and to equality, is favourable : 

the contrary is odious ...... 

302 What is useful to human society, is favourable : the contrary is odious 

303 Whatever contains a penalty is odious .... 

304 Whatever renders a deed void is odious 



305 



Whatever tends to change the present state of things, is ( 
contrary is favourable 

306 Things of a mixed nature 

307 Interpretation of favourable things 

308 Interpretation of odious things 

309 Examples ..... 

310 How we ought to interpret deeds of pure liberality 

311 Collision of laws or treaties 

312 First rule in cases of collision 

313 Second rule 

314 Third rule 

315 Fourth rule 

316 Fifth rule 

317 Sixth rule 

318 Seventh rule 

319 Eighth rule 

320 Ninth rule 

321 Tenth rule 

322 General remark on the manner of observing all the preceding rules 



odious: the 



Pom 

267 
258 
259 

ib. 
260 

t6. 
261 
262 

ib. 
263 

ib, 

264 
265 

ib. 

ib. 

ib. 
266 

ib. 
267 
268 
270 
271 

ib. 

ib. 

ib. 
272 

ib. 
273 

ib. 
274 

ib. 

ib. 

ib. 



CHAP. xvni. 

0/ the Mode of terminating Disputes between Nations. 

323 General direction on this subject ..... 274 

324 Every nation is bound to give satisfaction respecting the just com- 

plaints of another ...... 275 

325 How nations may abandon their rights and just complaints . ib. 

326 Means suggested by the law of nature for terminating their disputes : 

amicable accommodation ..... 276 

327 Compromise . . . . ib. 

328 Mediation ....... i&. 

829 Arbitration . . . . . .277 

330 Conferences and congresses ..... 278 

831 Distinction to be made between evident and doubtful cases . t6. 

382 Essential rights, and those of less importance . 279 



CONTENTS. ZZZVll 



888 How we acquire a right of reourring to foroe in a doubtful case . 280 
884 ■■ and even without attempting other measures ih. 

885'Tolvntary law of nations on that subject .... ib. 
886 Equitable conditions to be offered .... 281 

^37 Possessor's right in doubtful cases . . . .282 

338 How reparation of an injury is to be sought . , . tb, 

339 Retaliation . . ib. 

340 Various modes of punishing, without having recourse to arms . 283 

341 Retortion . ib. 

342 Reprisals . . .16. 

343 What is required to render them lawful .... 284 

344 Upon what effects reprisals are made . . . . tb. 

345 The state is bound to compensate those who suffer by reprisals . 285 

346 The sovereign alone can order reprisals . . . ib. 

347 Reprisals against a nation for actions of her subjects, and in &vour 

of the injured subjects . . . . ib. 

348 tut not in favour of foreigners . . . ib. 

349 Those who have given cause for reprisals are bound to indemnify 

those who suffer by them ..... 286 

350 What may be deemed a refusal to do justice 287 

351 Subjects arrested by way of reprisals .... ib. 

352 Our right a^nst those who oppose reprisals . 288 

353 Just reprisals do not afford a just cause for war . . . ih. 

354 How we ought to confine ourselves to reprisals, or at length proceed 

to hostilities ...... ib. 



BOOK III. 

OF WAR. 

CHAP. I. 
Of War, — its different Kinds, — and the Right of making War. 

1 Definition of war ....... 291 

2 Public war ....... ib. 

3 Rieht of making war . . . . ib. 

4 It belongs only to the sovereign power .... 292 

5 Defensive and offensive war ..... 298 

CHAP. n. 

Of the Instruments of War, — (he Raising of Troops, &e. — their Commanders, 
or the Subordinate Powers in War. 

6 Instruments of war ....... 293 

7 Riffht of levying troops ...... 294 

8 Obugation of the citizens or subjects . . . . ib. 

9 Enlisting or raising of troops . . . ib. 

D 



XXXVIU 



CONTENTS. 



10 Whether there be any exemptions from carrying arms 

11 Soldiers' pay and quarters 

12 Hospitals for invalids 

13 Mercenary soldiers 

14 Rule to be observed in their enlistment 

15 Enlisting in foreign countries 

16 Obligation of sol(fiers 

17 Military laws 

18 Military discipline . 

19 Subordinate powers in war 

20 How their promises bind the sovereign 

21 In what cases their promises bind only themselves 

22 Their assumption of an authority which they do not possess 
28 How they bind their inferiors . 



Pag% 

, 294 

296 

. ih. 

297 

. 298 

i6. 

. 299 

ib. 

, ib. 

ih. 

. 300 

i6. 

ib. 

301 



CHAP. III. 
Of the Just Causes of War. 

24 War never to be undertaken without very cogent reasons . 301 

25 Justificatory reasons, and motives for making war . . ib. 

26 What is in general a just cause of war .... 302 

27 What war is unjust ...... ib. 

28 The object of war . . . . . . . ib. 

29 Both justificatory reasons and proper motives requisite in undertaking 

a war . . . . . . .303 

30 Proper motives — ^vicious motives . . . . ib. 

31 War undertaken upon just grounds, but from vicious motives ib. 
38 Pretexts . . . . .304 

33 War undertaken merely for advantage . . ib. 

34 Nations who make war without reason or apparent motives . . 305 

35 How defensive war is just or unjust . . . . ib. 

36 How it may become just against an offensive war which was originally 

just - . . . . . . . ib. 

37 How an offensive war is just in an evident cause ib. 

38 in a doubtful cause . . . . . 306 

39 War cannot be just on both sides .... ib. 

40 Sometimes reputed lawful . . . . ib. 

41 War undertaken to punish a nation .... 307 

42 Whether the aggrandizement of a neighbouring power can authorize 

a war against him . . . ib. 

43 Alone, and of itself, it cannot give a right to attack him 308 

44 How the appearances of danger give that right . 309 

45 Another case more evident ..... 310 

46 Other allowable means of defence against a formidable power . 311 

47 Political equilibrium ...... ib. 

48 Ways of maintaining it . . . . • . 312 

49 How he that destroys the equilibrium may be restrained, or even 

weakened ....... ib. 

50 Behaviour allowable towards a neighbour preparing for war . .313 



00KTBNT8. XZXIZ 



CHAP. IV. 



Ofihi Dedaratian of War, — and of War in due Form. 

SkL Page 

61 Declaration of war : — ^necessity thereof .... 316 

52 What it 18 to contain ...... t6. 

53 It is simple or conditional . , . . . .316 

54 The right to make war ceases on the offer of equitable eonditions ib. 

55 Formauties of a declaration of war .... ih, 

56 Other reasons for the necessity of its publication . %b. 

57 Defensive war requires no declaration .... 317 

58 When it may be omitted in an offensive war . . , ib. 

59 It is not to be omitted by way of retaliation . . xb, 

60 Time of the declaration ..... i&. 

61 Duty of the inhabitants on a foreign army's entering a country before 

a declaration of war . . . . . . %b. 

62 Commencement of hostilities ..... 318 

63 Conduct to be observed towards the enemy's subjects who are in the 

country at the time of the declaration of war . . . ih, 

64 Publication of the war, and manifestoes ih. 

65 Decorum and moderation to be observed in the manifestoes . 319 

66 What is a lawful war in due form .... ih. 

67 It is to be distincjuished from informal and unlawful war . . 320 

68 Grounds of this £stinction . . . . . ih. 



CHAP. V. 

Of the Enemy, and of Things belonging to the Enemy. 

69 Who is an enemy ....... 321 

70 All the subjects of the two states at war are enemies . ih. 

71 and continue to be enemies in all places , ih. 

72 Whether women and children are to be accounted enemies ih. 

73 Things belonging to an enemy ..... 322 

74 continue such everywhere .... ih. 

75 Neutral things found with an enemy .... ih. 

76 Lands possessed by foreigners in an enemy's country ih. 

77 Things due to the enemy by a third party . . ih. 



CHAP. VI. 

Of the Enemy* B AUies, — of Warlike Associations, — of Auxiliaries and Sub 

sidies. 

78 Treaties rektive to war ...... 323 

79 Defensive and offensive alliances .... ib. 

80 Difference between warlike alliances and defensive treaties . . 324 

81 Auxiliary troops ...... ib. 

82 Subsidies . . . . . . . ib. 

83 When a nation is authorized to assist another ib. 

84 and to make alliances for war .... ib. 



CONTENTS. 



Sect, 

85 Alliances made with a nation actually engaged in war 

86 Tacit clause in every warlike alliance .... 

87 To refuse succours for an unjust war is no breach of alliance 

88 What the casus foederis is .... . 

89 It never takes place in an unjust war .... 

90 How it exists in a defensive war .... 

91 and in a treaty of a guaranty .... 

92 The succour is not due under an inability io furnish it^ or when the 

public safety would be exposed .... 

93 Other cases : — ^two of llie parties in an alliance coming to a rupture 

94 Refusal of the succours due in virtue of an alliance 

95 The enemy's associates ...... 

96 Those who make a common cause with the enemy are his associates 

97 and those who assist him, without being obliged to it by 



98 



treaties 



or who are in an offensive alliance with him 



99 How a defensive alliance associates with the enemy 

100 Another case ....... 

101 In what case it does not produce the same effect 

102 Whether it be necessary to declare war against the enemy's associates 



Pag* 
325 

ib. 
326 

lb. 

ib. 

ih. 

lb. 

ib, 
827 

ib. 
328 

ib. 

ib. 
829 

ib. 

ib. 
330 
331 



CHAP. vn. 

0/ Neutrality, — and the Passage of Troops through a Neutral Country. 

103 Neutral nations . . . .332 

104 Conduct to be pursued by a neutral nation . ib. 

105 An ally may furnish the succour due from him, and remain neuter 333 

106 Bight of remaining neuter ..... t5. 

107 Treaties of neutrahty . . . ib. 

108 Additional reasons for making those treaties . 334 

109 Foundation of the rules of neutrality . . . ib. 

110 How levies may be allowed, money lent, and every kind of things 

sold, without a breach of neutrality . . . i6. 

111 Trade of neutral nations with those which are at war . . 335 

112 Contraband goods ...... 336 

113 Whether such goods may be confiscated .... 337 

114 Searching neutral ships ..... 839 

115 Enemy's property on board a neutral ship .... ib. 

116 Neutral property on board an enemy's ship . . . ib. 

117 Trade with a besieged town . ib. 

118 Impartial offices of neutrals • • . . . 340 

119 Passage of tioops through a neutral country . ib. 

120 Passage to be asked ...... ib. 

121 It may be refused for good reasons .... 341 

122 In what case it may be forced ..... i5. 

123 The fear of danger authorizes a refusal .... 342 

124 or a demand of every reasonable security . ib. 

125 Whether always necessazy to give every kind of security required . ib. 

126 Equality to be observed towards both parties, as to the passage 343 

127 No complaint lies against a neutral state for granting a passage . ib. 



CONTENTS. xK 

SeeL Page 

128 That state may reftiBe it from fear of the resentment of the opposite 

party . . .843 

129 and lest her country shonld become the theatre of war tb. 

130 What is included in the grant of passage .... 844 

Itl Safety of the passage ...... t&. 

192 No hostility to be committed in a neutral country . . . i5. 

IBS Neutral country not to afford a retreat to troops^ that they may again 

attack their enemies ..... 846 

1S4 Conduct to be pursued by troops passing through a neutral country ib. 
185 A passage may be refused for a war evidently unjust %b> 



CHAP. VIII. 

0/the Rights of Nations in War, — andfint^ ofwh/it toe have a Right to do, 
and what we are allowed to do, to ike Enemas Person in a just War. 

186 Gkneral principle of the rights against an enemy in a just war . 846 

137 Difference between what we have a right to do, and what is barely 

allowed to be done with impunity between enemies . . ib. 

138 The right to weaken an enemy by every justifiable method . 847 

139 The right over the enemy's person .... ib. 

140 Limits of that right: — an enemy not to be killed after ceaaing to resist ib. 

141 A particular case in which quarter may be refused . 848 

142 Eeprisals . . . . . . ib. 

148 Whether a governor of a town can be punished with death for an 

obstinate defence ...... 849 

144 Fu^tives and deserters ...... 851 

145 WomeU; children, the aced, and sick .... ib. 

146 Clergy, men of letters, Ac. ..... 852 

147 Peasants, and, in geneoral, all who do not carry arms ib. 

148 The right of making prisoners of war .... 858 

149 A prisoner of war not to be put to death 854 

150 How prisoners of war are to be treated .... ib. 

151 Wlietner prisoners, who cannot be kept or fed, may be put to death 855 

152 Wliether prisoners of war may be made slaves . 856 

153 Exchange and ransom of |«isoners .... 857 

154 The state is bound to procure their release ib. 

155 Whether an enemy may lawfuUy be assassinated or poisoned . 858 

156 Wliether poisoned weapons may be used in war 861 

157 Whether springs may be poisoned .... tb. 

158 Disposition to be entertained towards an enemy 862 

159 Tenderness for the person of a kmg who is in arms against us . 868 



CHAP. IX. 
0/the Right of War, toithRetpeet to Things belonging to the Enemy. 

160 Principles of the right over things belonging to the enemy . 864 

161 The right of seizing them . . . ib. 

162 What IS taken from the enemy by way of penalty ib. 

163 What is withheld from him, in order to oblige him to give just satis- 

faction . . 865 

6 d2 



zlii 



OOHTBNTB. 



Seet. 

164 Booty .... 

165 Contribution .... 

166 Waste and destiuction 

167 Ravaging and burning 

168 What things are to be spared 

169 Bombarding towns 

170 Demolition of fortresses 

171 Safeguards .... 

172 General rule of moderation respecting the 

to an enemy 

173 Rule of the voluntary law of nations on the same subject 



evil which may be done 



Paae 

. 865 
866 

. <b. 
867 

. 868 



ib. 

ih. 
ib. 



CHAP. X. 

Of Faith between EnemieSy-^f Stratagems, Artifices in War, Spies^ and 
some other Jh-actices. 

174 Futh to be sacred between enemies 

175 What treaties are to be observed between enemies 

176 On what occasions they may be broken 

177 Lies 

178 Stratagems and artifices in war 

179 Spies 

180 Clandestine seduction of the enemy's people 

181 Whether the offers of a traitor may be accepted 

182 Deceitful intelligence 



. 871 


872 


. ib. 


ib. 


. 873 


875 


. 876 


877 


. ib. 



CHAP. XI. 

0/the Sovereign who wages an unjust war. 

183 An unjust war gives no right whatever .... 378 

184 Great guilt of the sovereign who undertakes it ib. 

185 His obligations . . . . .379 

186 Difficulty of repairing the injury he has done ib. 

187 Whether the nation and the military are bound to any thing . 380 



CHAP. xn. 

0/the Voluntary Law ofNationSj as it regards the Effects of Regular War/are, 
independently of the Justice of the Cause. 

188 Nations not riridly to enforce the law of nature against each other 381 

189 Why they are Dound to admit the voluntary law of nations ib. 

190 Regular war, as to its effects, is to be accounted just on both sides 382 

191 Whatever is permitted to one party, is so to the other ib. 

192 The voluntary law gives no more than impunity to him who wages 

an unjust war ....... 383 



OOKTENTS. 



zliii 



CHAP. xm. 

0/ Acquisitions by War, and particularly of Conquests. 

SeeL 

193 War a mode of acquisition 

194 Measure of the right dt gives 

195 Rules of the voluntary law of nations 

196 Acquisition of movable property 

197 Acquisition of immovables,— or conquest 

198 How to transfer them validly . 

199 Conditions on which a conquered town is acquired 

200 Lands of private persons 

201 Conquest of the whole state 

202 To whom the conquest belongs 

203 Whether we are to set at liberty a people whom the enemy had un- 

justly conquered ...... 



Page 


. 384 


a. 


. 385 


ib. 


. 386 


387 


. *. 


388 


. ib. 


391 



ib. 



CHAP. XIV. 

0/ the Right of Postliminiwm, 

204 Definition of the right of postliminium .... 392 

205 Foundation of that right ..... t6. 

206 How it takes effect .393 

207 Whether it takes effect among the allies . . . i6. 

208 Of no validity in neutral nations , ib. 

209 What things are recoverable by that right 394 

210 Of those who cannot return by the right of postliminium ib. 

211 They enjoy that right when retaken .... ib. 

212 Whether that right extends to their property alienated by the enemy 895 

213 Whether a nation that has been entirely subdued can enjoy the right 

of postliminium ...... 396 

214 Eight of postliminium for what is restored at the peace . 397 

215 and for things ceded to the enemy . ib. 

216 The right of postliminium does not exist after a peace ih. 

217 Why always in force for prisoners .... ib. 

218 They are free even by escaping into a neutral country ih. 

219 How the rights and obligations of prisoners subsist 398 

220 Testament of a prisoner of war . . . ib. 

221 Marriage ....... i5. 

222 Reguhitions established by treaty or custom^ respecting postliminium ih. 



CHAP. XV. 

Of the Right of Private Persons in War. 

223 Subjects cannot commit hostilities without the sovereign's order 399 

224 That order may be general or particular .... ib. 

225 Source of the necessity of such an order t6, 

226 Why the law of nations should have adopted this rule . ib* 

227 Precise meaning of the order ..... 400 

228 What may be undertaken by private persons, presuming on the 

sovereign's will ...... t6 

229 Privateers . , ib 

230 Volunteers ....... 40^ 



xliv 



CONTENTS. 



Sect. 

281 What soldiers and subalterns may do ... . 

282 Whether the state is bound to indemnify the subjects for damages 

sustained in war ..... 402 



233 
234 
235 
236 
287 
238 
289 
240 
241 
242 
243 
244 
246 



246 

247 

248 
249 
260 
261 

262 
258 

264 
265 
256 
257 

268 

269 
260 

261 
262 
263 
264 



CHAP. XVI. 
0/ various Conventions made during the Course of the War. 

Truce and suspension of arms 

does not terminate the war . 

A truce is either partial or general 

General truce for many years 

By whon^ those agreements may be concluded 

The sovereign's faith engaged in them 

When the truce begins to be obligatory 

Publication of the truce 

Subjects contravening the truce 

Violation of the truce . 

Stipulation of a penalty against the infractor 

Time of the truce 

Effects of a truce : what is allowed or not, during its continuance. — 
First rule — Each party may do at home what they have a right to 
do in time of peace ...... 

Second rule — ^not to take advantage of the truce in doing what hos- 
tilities would have prevented .... 

for instance, continuing the works of a siege, or repairing 



breaches 



• or introducing succours 



Distinction of a particular case 

Retreat of an army during a suspension of hostilities 

Third rule — ^Nothing to be attempted in contested places, but every 

thing to be left as it was ..... 

Places quitted or neglected by the enemy 
Subjects inclined to revolt against their prince not to be received 

during the truce ...... 

much less to be solicited to treason 

Persons or effects of enemies not to be seized during the truce 
Right of postliminium during the truce 

Intercourse allowed during a truce • « • 

Persons detained by unsurmountable obstacles after the expiration of 

the truce ....... 

Particular conditions added to truces .... 

At the expiration of the truce the war recommences without any new 

declaration ....... 

Capitulations; and by whom they may be concluded 

Clauses contained in them ..... 

Observance of capitulations, and its utility 
Promises made to the enemy by individuals 



404 

ih. 

ib. 

ih. 
405 
406 

ih. 

ib. 

ib. 
407 

ib. 

ih. 



408 

409 

ib. 

ib. 

410 

ib. 

411 
ih. 

ib. 
ib. 
ib. 
ib. 
ib. 

412 
ib. 

ib. 

ib. 
413 
414 

ib. 



CHAP. XVII. 

0/ Safe-conducts and PassportSy and Questions on the Ransom of Prisoners 

of War. 



266 Nature of safe-conducts and passports 

266 From what authority they emanate 

267 Not transferable from one person to another 



416 
ib. 
ib. 



COOTBKTS* Xlv 

Page 

S68 SzteBt of the promised security . , « « . 416 

860 iBjom ta Judge of the right derived from a safe conduct . 417 

S70 Whether it includes baggage and domestics > # . i&. 

271 Safe eonduct granted to the father does not include his family . ih. 

272 Safe conduct given in general to any one and his retinue . . ih. 
27S Term of the safe conduct ..... 418 

274 A person unavoidably detained beyond the term . . ib 

275 The safe conduct does not expire at the death of him who gave it ih. 

276 How it may be revoked . . t6. 

277 Safe conduct, with the clause '' for such time as we shall think fit" ib, 

278 Conventions relating to the ransom of prisoners . . .419 

279 The right of demanding a ransom may be transferred . . ib, 

280 What may annul the convention made for the rate of the ransom . ib. 

281 A prisoner dying before payment of ransom . . ib. 

282 Prisoner released on condition of procuring the release of another . 420 

283 Prisoner retaken before he has paid his former ransom . ib. 

284 Prisoner rescued before he has received his liberty . . ib. 

285 Whether the things which a prisoner has found means to conceal, 

belong to him ...... 421 

286 Hostage given for the release of a prisoner . . ib. 

CHAP. xvm. 

0/ Civil War. 

287 Foundation of the sovereign's rights against the rebels . .421 
^. , , 422 

ib. 

ib. 
423 
424 
425 

ib. 
426 
427 



288 Who are rebels 

289 Popular commotion, insurrection, sedition . 
29Q How the sovereign is to suppress them 

291 He is bound to perform the prombes he has made to the rebels 

292 Civil war ..... . 

293 A civil war produces two independent parties 

294 They are to observe the common laws of war 

295 The effects of civil war distinguished according to cases 

296 Conduct to be pursued by foreign nations 



BOOK IV. 

OF THE RESTOEATION OF PEACE; AND OF EMBASSIES. 

CHAP. I. 
0/ PecLCCy and the Obligation to cultivate it. 

1 What peace is 

2 Obligation of cultivating it . . . 

3 The sovereign's obligation in that respect 

4 Extent of that duty .... 
6 Disturbers of the public peace , . * . 

6 How far war may be continued 

7 Peace the end of war .... 

8 General effects of peace .... 



429 
430 

ib. 

ib. 
431 

iJb. 
432 

ib. 



xlvi 



CONTENTS, 



CHAP. n. 
Treaties of Peace, 

Sect. Pag* 

9 Defiriitim of a treaty of peace ..... 432 

10 By whom it may be concluded ..... i6. 

11 Alienations made by a treaty of peace .... 433 

12 How the sovereign may^ in a treaty, dispose of what concerns indiyidoals 435 

13 Whether a king who is a prisoner of war can make a peace . . ib, 

14 Whether peace can be made with an usurper . . 436 

15 Allies included in the treaty of peace .... %b. 

16 Associates to treat, each for himself .... 437 

17 Mediation . . . . . . . . %b. 

18 On what footing peace may be concluded . . . i&. 

19 General effect of the treaty of peace .... 438 

20 Amnesty ....... 439 

21 Things not mentioned in the treaty . . . .16. 

22 Things not included in the compromise or amnesty . . ib, 

23 Former treaties, mentioned or confirmed in the new, are a part of it 440 



CHAP. III. 
Of the Execution o/the Treaty 0/ Peace, 

24 When the obligation of the treaty commences 

25 Publication of the peace 



440 
tb. 

441 
t6. 



26 Time of the execution 

27 A lawful excuse to be admitted .... 

28 The promise is void when the party to whom it was made has himself 

hindered the performance of it . . . . . tb. 

29 Cessation of contributions ..... 442 

30 Products of the thing restored or ceded .... ib, 

31 In what condition things are to be restored . . . %b, 

32 The interpretation of a treaty of peace is to be against the superior party 443 

33 Names of ceded countries ..... t6. 

34 Restoration not to be understood of those who have voluntarily given 

themselves up . . . . 444 



CHAP. IV. 

0/ the Observance and Breach of the Treaty of Peace, 

35 The treaty of peace binds the nation and successors . 

36 It is to be faithfully observed ..... 

37 The plea of fear or force does not dispense with the observance 

38 How many ways a treaty of peace may be broken 

39 by a conduct contrary to the nature of every treaty of peace 



444 

ib, 

445 

446 

ib, 

ib. 



40 To take up arms for a fresh cause is no breach of the treaty of peace 

41 A subsequent alliance with an enemy is likewise no breach of the treaty 447 

42 Why a distinction is to be made between a new war and a breach of 

the treaty . . . . . . . ib. 

43 Justifiable self-defence is no breach of the treaty . 448 

44 Causes of rupture on account of allies .... 449 

45 The treaty is broken by what is contrary to its particular nature ib. 

46 by the violation of any article . . . ib. 

47 The violation of a single article breaks the whole treaty . . ib. 



CONTENTS. 



xlvii 



Seel. Page 

48 Whether a distinctioii may here be made between the more and the less 

important articles ...... 450 

49 Penalty annexed to the violation of an article . . ib, 

50 Studied delays . . . . ... . tb. 

51 XJnsormonntable impediments ..... t5. 

52 Infractions of the treaty of peace by the subjects . . . 451 

53 or by allies ...... t6. 

54 Bight of the offended party against him who has violated the treaty 452 



CHAP. V. 

0/ihe Right of Embassy, or the Right of sending and receiving Public Ministers. 

55 It is necessary that nations be enabled to treat and communicate together 452 

56 They do that by the agency of public ministers . . . 453 

57 Every sovereign state has a right to send and receive public ministers i6. 

58 An unequal alliance^ or a treaty of protection; does not take away that 

right . . . . . . . ib. 

59 Right of the princes and states of the empire ^n that respect . ib. 

60 Cities that have the right of banner .... 454 

61 Ministers of viceroys . . . . 455 

62 Ministers of the nation or of the regents during an interregnum . ib. 

63 Sovereign molesting another in the exercise of the right of embassy ib. 

64 What is allowable in that respect in time of war . ib. 

65 The minister of a friendly power is to be received . . .456 

66 Kesident ministers ...... t6. 

67 Admission of an enemy's ministers . . . 457 

68 Whether ministers may be received from or sent to an usurper ib. 



CHAP. VI. 

0/ tJie several Orders of Public Ministers, — of the Representative Character, 
and of the Honours due to Ministers. 



69 Origin of the several orders of public ministers 


. 459 


70 Representative character 


ib. 


71 Ambassadors .... 


. ib. 


72 Envoys . . . . • 

73 Residents ...... 


460 


. ib. 


74 Ministers *. . 


ih. 


75 Consuls, agents^ deputies^ commissioners; &c. 


. 461 


76 Credentials ..... 


ib. 


77 Instructions . . . . . 


. ib. 


78 Right of sending ambassadors 


ib. 


79 Honours due to ambassadors 


. 462 



CHAP. vn. 

0/ihe Rights, Privileges, and Immunities of Ambassadors, and other Public 

Minivers. 

80 Respect due to public ministers ..... 464 

81 Their persons sacred and inviolable . . . . ib. 

82 Particular protection due to them ..... 465 

83 When it commences . . . . 466 

84 What is due to them in the countries through which they pass . ib. 



xlviii 



CONTENTS. 



Sect. Page 

85 Ambassadors going to an enemy's country .... 467 

86 Embassies between enemies . . . . . ib. 

87 Heralds^ trumpeters^ and dmmmers .... 468 

88 Ministers, trumpeters, &c., to be respected even in a civil war . ib. 

89 Sometimes they may be refused admittance . . . 469 

90 Every thing wmch has the appearance of insult to them must be avoided ib, 

91 By and to whom they may be sent .... 470 

92 Independence of foreign ministers . . . . i6. 

93 How the foreign minister is to behave .... 472 

94 How he may be punished for ordinary transgressions . . 475 

95 for &ults committed against the prince . . ib. 

96 Eight of ordering away an ambassador who is guilty or justly suspected tb. 

97 Right of repressing him by force, if he behaves as an enemy . 476 

98 Ambassador forming dangerous plots and conspiracies . . tb. 

99 What mav be done to him according to the exigency of the case . 478 

100 Ambassador attempting against the sovereign's life . 479 

101 Two remarkable instances respecting the immunities of public ministers 480 

102 Whether reprisals may be made on an ambassador . . 481 

103 Agreement of nations concerning the privileges of ambassadors . 482 

104 Free exercise of religion . . . . . 483 

105 Whether an ambassador be exempted from all imposts . . 484 

106 Obli^tion founded on use and custom . . . 485 

107 A minister whose character is not public .... ib. 

108 A sovereign in a foreign country .... 486 

109 Deputies to the states . . . . . .487 



CHAP. VIII. 
0/ the Judge of Ambassadors in Civil Cases. 

110 The ambassador is exempt from the civil jurisdiction of the country 

where he resides ...... 488 

111 How he may voluntarily subject himself to it . . 489 

112 A minister who is a subject of the state where he is employed . 490 

113 Immunity of the minister extends to his property . . 491 

114 The exemption cannot extend to effects belonging to any trade the 

minister may carry on . . . . . . 492 

115 nor to immovable property which he possesses in the country 498 

116 How justice may be obtained against an ambassador . ih. 

CHAP. IX. 
0/ ike Ambassador's House and Domestics. 

117 The ambassador's house .... 

118 Right of asylum .... 

119 Exemption of an ambassador's carriages 

120 of his retinue 

121 of his wife and family . 

122 of the secretary of the embassy 

123 of the ambassador's couriers and despatches 



124 The ambassador's authority over his retinue 

125 When the rights of an ambassador expire 

126 Cases when new credentials are necessary 

127 Conclusion 



494 
495 
496 
497 

ib. 

ib. 
498 

ib. 
500 

ib. 

ib. 



THE 



LAW OF NATIONS. 



PRELIMINARIES. 



IDEA AND GENERAL PRINCIPLES OF THE LAW OF NATIONS. 

Nations or states are bodies poKtic, societies of men { i. What 
united together for the purpose of promoting their mutual ^ ^^^ ^^ 
safety and advantage by the joint efforts of tneir combined ^^^^ *' 
strength. 

Such a society has her affairs and her interests ; she de- 2 2. it is a 
Kberates and takes resolutions in common ; thus becoming a ™^"* P*'- 
moral person, who possesses an understancUn^ and a will pe- "^°* 
culiar to herself, and is susceptible of obligat%on$ and rigjk%. 

To establish on a solid foundation the obliffotians andjs. Defini- 
rights of n^xtianSy is the design of this work. ^^ ®^ *^* 

The Law of Nations is the science which teaches the rights ^^ "*' 
subsisting between nations or states^ and the obligations eor- 
respandmt to those rights.{\) 



(1) The Law of Nations modifies 
the iBfeeroonne of independent oom- 
monwealths in peace, and prescribes 
limits to their hostilities in loar. It 
prettoribes, that in peace nations shoold 
do eaeh other a» mnoA good, and in time 
of war 4M UitU harm, as may be possi- 
ble, without iiijaring their own proper 
real interests. The laws of nations, in 
shor^ establish that principle and role 
of eoadnct which should prcTont the 
atromgeH nation from abasing its power, 
aod indiiee it to act Jostly atkd gene- 
ronslj towards ether states, upon the 
braad prine^lo that true happiness, 
whether of a single individoal or of 
aereral, can onlj resolt from eaoh 
adopting eonduet inflnenoed bj a sin- 
eere desire to increase the general wel- 



fare of all mankind. (Poet, J 18, 14 ; Gknenl 
Mackintosh, Dis. 3, 4; Montesq. de views of the 
I'Esprit des Lois, Uy. 1, c. 3; and see law of na- 
1 Bla. Com. 84 to 44; 4 Bla. Com. 66, tions; and 
67.) In cases of donbt arising upon how it is to 
what is the Law of Nations, it is now be asoer- 
an admitted role among all Bnro-tained. 
pean nations, that onr common reli- 
gion, Chrietiamtjf, pointing ont the 
principles of natural juetiee, ahofuld be 
equally appealed to and observed by 
all as an nnfhiling rale of eonstrao- 
tion. (2 Ward's Law ef Nations, pp. 
11, 839, 840.) The difflooli^ is, that 
there is no general moral imtentoHonal 
code framed by the oonsent of the En- 
Topean powers, so desirable to be fixed, 
especially at this period, when hannony 
happily appears to sobsist^ and most 



N. B. The notes numbered as 1, 2, 8, 4, Ac, and in general eondadiBg with 
0., are by the present Editor. 

7 E 49 



Iv 



IDEA AND GENERAL PRINCIPLES 



PRKL1¥I. 
NARIBS. 



In this treatise it will appear, in what manner StateSy as 
- such, otighf to regulate all their actions. We shall examine 



of the nations of Europe hare, by re- 
cent experience, become practically 
conyinced of the advantages that would 
result from the establishment of fixed 
general rulee, so as to reconcile the fre- 
quent discordancy of the decisions of 
their various prixe tribunals and upon 
other contests. The statesmen of the 
higher powers of Europe would immor- 
talize themselves by introducing such 
a code, and no period of history for the 
purpose has been so fkvourable and op- 
portune. (See Atoheson's Report of 
the case of Havelock v. Boekwoodf Pre- 
face i.) 

The law of nations is adopted in 
Great Britain in its fUil and most liberal 
extent by the common law, and is held 
to be part of the law of the land ; and 
all statutes relating to foreign affairs 
should be Aramed with reference to that 
rule. (4 Bla. Com. 67.) But still there 
is no general code y and to the regret 
that none has been introduced, may 
be also added, the want of an tnterna- 
Honal court or tribunal, to decide upon 
and enforce the law of nations when 
disputed; and consequently, although 
when states are temperately inclined 
to ascertain and be governed by the 
law of nati<m9f there will be little doubt 
upon the decision, or of the adoption 
of measures the most just ; yet, if a 
state will not listen to the immutable 
principles of reaeon, upon the basis of 
which the imperfect law of nations is 
founded, then tiie only remedy is to 
ai^peal to arms ; and hence frequently 
the Just cause of war, which, if there 
were a fixed code, with a proper tribu- 
nal to construe it, would in general be 
prevented. 
The pre- The eoureee Arom whence is to be 

sent sources gathered information-— te&ot t*« the j>oei- 
of informa- Hve Law of Natione generally and per- 
tion upon manenUy binding upon all independent 
the law of etateef ard acknowledged to b« of three 
Nations. descriptions : Firet, the hng and ordi- 
nary pRACncB </ natioMf which aifords 
evidence of a general custom, tacitly 
agreed to be observed until expressly 
abrogated. Seeondlyf the Recitalb of 
what is acknowledged to have been 
the law or practice of nations, and 
which recitals will frequently be found 
in modem treaties. Thirdly, the Warr- 
iiros of eminent atUhore, who have long, 
as it were by a concurrence of tesU- 
50 



mony and opinion, declared what is the 
existing international Jurisprudence. 

Thus Lord ManefUld, in Triqnet v. 
Bath, (3 Burr. Rep. 1481,) stated as the 
declaration of Lord Talbot, that the 
law of nations is to be collected IVom 
the practice of different natione, (and see 
per Sir William Scott, in The Fladoyen, 
1 Rob. Rep. 115, poet, IxilL n. (7),) and 
the authority of writere, such as Gro- 
tius, Barbeyrac, Bgnkershock, Wie- 
queforty Ac, there being no English 
writer of eminence upon the subject; 
and English elementary writers of high 
authority have also acknowledged that 
such foreign authors are authorities to 
ascertain the law of nations. (Comyn'a 
Digest^ tit "Ambassador," B.; Yiner's 
Ab. "Merchant," A. 1; and 3 Bla. 
Com. 273.) To these are to be add^, 
Puifendorf, Wolf, Selden, Valen, Cle- 
rao, Pothier, Burlamaqui, Emerigon, 
Roccus, Oasegia, Loecenius, Santema, 
Haline, lilolloy, and above all, the pre- 
sent work of Vattel; to which may be 
added some modem works of great 
ability, but not yet acknowledged to be 
such high general authority as the for- 
mer, vis. Ward's and Marten's Law 
of Nations, and the recent valuable 
French publication, Ceurs de Droit 
Public Interne et Exteme, par le Oom- 
mandeur Silvestro Pinheiro Fenrreira, 
Minlstre D'Etat an Paris, 1830, which 
embraces the French modem view of 
the law of nations upon most of the 
subjects discussed in Vattel and some 
others. 

It was f^m the more ancient of these 
several authors, and other similar re- 
sources, that Lord Mansfield fhuned 
the celebrated letter of the Duke of 
Newcastle to the King of Ftussia's 
Secretary, which is considered a stand- 
ard of authority, upon the laws of 
nations, as far as respects the then 
disputed right to search for and seita 
enemies' property on board neutral 
ships in oertaln eases in time of 
war. (See HoUiday's Life of Lord 
Mansfield voL 2, p. 424, Ac, and Col- 
lectanea Juridica, 1 voL 120; see also 
Viveaah v. Becker, 8 Maale A Selwyn, 
284, in which Lord EUenborough 
quotes several of the above anthon, to 
aseertain the law of nations upon the 
privilege of consuls.) 

Upon some parte of the law of 



OF THE LAW OF NATIONS, 



Iv 



the Obligations of a people, as well towards themselves as pr«mmi- 
towards other nations ; and by that means we shall discover '^^^"'*' 



nations, espednUy that relating to mari- 
time affair§f there are ancten< eode^, 
which either originated in authoritv, 
or were afterwards acknowledged to 
hare become such ; but still those codes 
in the present state of commercial in- 
terooorse are imperfect Of those are 
the Bkodian Law9, being one of the 
earliest systems of marine law, bat 
which was superseded by the collec- 
tion entitled GoMolato del Mare, Oro- 
tins. Book 3, eh. 1, s. 6, n. 6. Next 
in order are the Lowe of Oleron, pro- 
mulgated about the thirteenth century. 
Another system of international law 
was framed by the deputies of the 
HanMeatie League in 1597, and which 
was confirmed with additions in 1614, 
and has obtained much consideration 
ia the maritime jurisprudence of na- 
tions. (See remarks on that code, 2 
Ward's Law of Nations, 276 to 200). 
Bat the most complete and compre- 
hensive system of the marine law of 
na^ons is the celebrated Ordinance of 
Marine of Louis XIV., published in 
1681, and which, coupled with the 
eommentary of Valin, Lord Mansfield 
always treated as of the highest au- 
thority. (See 1 Marshall on Insurance, 
Prelim. Dis. 18.) 

In modem times, in order to pre- 
TODi any dispute upon the existence 
or application of the general law of 
nations, either pending peace, or at or 
after the subsequently breaking out of 
war between two or more independent 
states, it has become the practice to 
eater into eeeprete treatiee, earefcQly pro- 
Tiding for every contingency, and 
eepeciaQy modifying and softening the 
injniloas consequences of sudden war 
upon the commercial and other inter- 
aouae between the two states, and 
sometimes even wholly changing the 
character of war or of alienage, and even 
enaWfag a foreign alien enemy during 
war to retain his interest in land in the 
opponent conntry. (See an illustrating 
Snstanee in SuUoh v. «SW(o», 1 Russ. A 
Uf, Bep. 663.) { Society, Ac. v. New Ha- 
ven, 6 Wheat R. 464.} In these oases, 
tha treaty between the two oontraot- 
Jttg states either alters, or expressly de- 
darm the law of nations, and binds each, 
fint stiU questions upon the general law 
of nations will frequently arise, and it 
will then become necessary to reonr to 



the other evidence of what is the law of 
nations, vis. the previous ordinary and 
general or particular practice, or the 
opinion of the authors before alluded to. 

In the latter part of the last, and in 
the present century, a great accession 
of learning, information, and authority 
upon the law of nations has been af- 
forded by the valuable decisions of Sir 
W. Scott, (afterwards Lord Stowell,) 
and Sir J. NichoU in the Court of Ad- 
miralty and Prise Court, and by seve- 
ral decisions in our Courts of Law 
and Equity. The known learning 
and scrupulous justice evinced in those 
decisions, have commanded the respect, 
the admiration and adoption, of all the 
European states, and of that modem, 
enlightened, and energetic nation, 
America. To these may be added, 
Chalmer's Collection of Opinions, which 
contain great learning upon many sub- 
jects of the public affairs of nations. 
These have been fnWj published since 
Vattel wrote; and the editor has at- 
tempted to improve this edition, by 
occasionally referring in the notes to 
the reports and work alluded to. The 
editor has abo, in his Treatise on Com- 
mercial Law, and in a Summary of the 
Law of Nations, endeavoured to take 
a more extended view of some of those 
branches of the law of nations, princi- 
pally as it affects foreign commerce, 
and of the decisions and works subse- 
quent to the publication of Vattel. 

If the perfect general rights or law of Violation 
nations be violated, then it appears to of x^aw of 
be conceded, that such violation may Nations, 
be the actual and avowed ground of a ^hon a 
juet war ; and it is even laid down that ground of 
it is the duty of every nation to chas- -^i^r. 
tise the nation guilty of the aggression. 
(Vattel, poet. Book I. chap, xxiii. | 283, 
p. 126; Book IL chap. ii. § 24, p. 144; 
2 65, 66, 67, p. 160, 161.) 

Unhappily, especially in modem 
times, we have found that the law of 
nations has sometimes been set at 
naught' by overpowerful states, adher- 
ing (to use the words of an English 
monarch) rather to Common Law than 
stopping to inquire whether the law of 
nature and of justice had not become, 
and been declared in that instance, 
part of the law of nations. It may 
therefore be asked, of what utility is 
the law of nations, since it is of such 
51 



Iv 



IDEA AKB OEKEBAL PBIKOIPLES 



PSELIMI- 
VARIBS. 



the Rights which result from these obligations. For, the 
-right being nothing more than the power of doing what is 
[ Ivi ] morally possible, that is to say, what is proper and consist- 
ent with duty^ — ^it is evident that right is derived from duty, 
or passive obligation, — the obligation we lie nnder to act in 
such or such manner. It is therefore necessary that a Na- 
tion should acquire a knowledge of the obligations incumbent 
on her, in order that she may not only avoid all violation of 
her duty^ but also be able distinctly to ascertain her rights^ 
or what she may lawfully require from other nations. 

Nations being composed of men naturally free and inde- 
pendent, and who, before the establishment of civil societies, 
^ lived together in the state of nature, — Nations^ or sovereign 
states, are to be considered as so many free persons living 
dered. together in the state of nature. 



;4. In 
what light 
nations or 
states are 
be consi- 



No ptrma- 
iient or ge^ 
ueratf court. 



imperfect and inefficient obligation? 
The answer is, Uiat aU nations, al- 
though for a time astounded and sur- 
prised hy the unexpected aggression of 
an oppressive and ambitious conqueror, 
will yet ultimately feel, and endeavour 
to give effect to, the true law of na- 
tions, lest^ by suffering its continued 
violations, they may individually be 
sacrificed ; and consequentiy, as in the 
instance alluded to, they will ulti- 
mately coalesce and associate in one 
common cause, to humiliate and over- 
come the proud invader of aU just 
rights and principles. It is therefore 
of the highest importance to collect aU 
the principles and rules, which, in 
oases of doubt, mast ever be consulted, 
at least by statesmen, in endeavouring 
to settie differences between differing 
States; and no authority stands higher 
in this respect than Vattel. 

There is no permanent and general 
intern€iHonal court, and it will be found, 
that in general the sovereign, or go- 
vernment of each state, who has the 
power of declaring war and peace, has 
also, as an incident, sole power of de- 
ciding upon questions of booty, cap- 
ture, prize, and hostile seizure, though 
sometimes that power is delegated, as 
in Great Britain, as respects maritime 
«eiiuro8, by commission to the judge 
of the Admiralty Court, with an ap- 
peal from his decisions to the Privy 
CounciL In these oases no other ma- 
nici]>al court has oognizalioe in case of 
any hostile seizure. Elphineton v. Be» 
dt'eevhund, Knapp's Bep. 316 to 361; 
and Ilill v. Eeardon, 2 Buss. Bep. 608, 
and further, poet, p. 392. 8o there is 
no general international court in which 
52 



a treaty can be direetiy enforced, al- 
though, collaterally, its meaning rnvf 
be discussed in a municipal eoort; 
therefore, no bill to enforce a treaty 
can be sustained in equity. Nahoh of 
Camatic v. Ecut India Company, 2 Yes. 
jun. 56; and BiU v. ^eardon,2 Sim. 
A Stu. 437 ; 2 Buss. Bep. 608. 

Sometimes, however, especially in 
modem times, treatiet, confirmed by 
temporary statutes in each ooantry, ap- 
point a temporary intemaHonal eonrt, 
with limited powers, to decide upon 
certain claims, and to be satisfied out 
of an appointed public Amd. Thas, 
in the treaty of peace between (}reat 
Britain and France, and by the 69 G. 3, 
0. 81, certain eommisaioners were ap- 
pointed to carry into effect the con- 
ventions for liquidating the cl^ffis of 
British subjects on the French govern- 
ment, with an appeal to the Privy 
Council. In these cases, the appointed 
jurisdiction is exclusive, and no otlier 
municipal court has any power as re- 
gards the a4jastment of the claims be- 
tween the two subjects of each ooan- 
try ; — ^though, as between private indi- 
viduals, if any claimant stand in the 
situation of an agent or trustee, then, 
in a court of equity, he may be com- 
polled to act as a trustee of the som 
awarded to him. Hill v. Reardon, Jao. 
Bep. 84; 2 Boss. Bep. 608 to 633; 
over-roling the Yioe-OhanoeUor's de- 
oision in 2 Sim. A Sto. 437.— 0. {Ob- 
enegy^, Fotce, 1 Peters S. G. Bep. 198, 
decided upon the Treaty with Spain, 
which ceded Florida to the United 
States, dated May 2d, 1810. See also 
Leetapiee v. Ingrakamf 5 Barr, 71, and 
the oases cited.} 



OF THB LAW OF NATIONS. Ivi 

It is a settled point with writers on the natural law, that PBRuin- 
all men inherit from nature a perfect liberty and independ- ^^^^^^' 
enccj of which they cannot be deprived without their own 
consent. In a State, the individual citizens do not enjoy 
them fuUf/ and absolutely, because they have made a partial 
surrender of them to the sovereign. But the body of the 
nation, the State, remains absolutely free and independent 
with respect to all other men, and all other Nations, as long 
as it has not voluntarily submitted to them. 

As men are subject to the laws of nature, — and as their j 5. To 
union in civil society cannot have exempted them from the ^^^* ^^* 
obligation to observe those laws, since by that union *l^6y°^^l^°J^"® 
do not cease to be men, — the entire nation, whose common ^ 
will is but the result of the united wills of the citizens, re- 
mains subject to the law8 of nature^ and is bound to respect 
them in all her proceedings. And since right arises from ob- 
ligation, as we have just observed (§ 8), the nation possesses 
ako the same rights which nature has conferred upon men in 
order to enable them to perform their duties. 

We must therefore apply to nations the rules of the law j e. in 
of nature, in order to discover what their obligations are, and what the 
what their rights : consequently, the lato of Nations is origin- J?^ °^ "^ 
ally no other than the law of Nature applied to Nations. ^aHy con- 
But as the application of a rule cannot be just and reason- sists. 
able unless it be made in a manner suitable to the subject, we 
are not to imagine that the law of nations is precisely and in 
every case the same as the law of nature, with the difference 
only of the subjects to which it is applied, so as to allow of 
our substituting nations for individuals. A state or civil so- 
ciety is a subject very different from an individual of the hu- 
man race ; from which circumstance, pursuant to the law of 
nature itself, there result, in many cases, very different obliga- 
tions and rights : since the same general rule, applied to two 
subjects, cannot produce exactly the same decisions, when 
the subjects are different ; and a particular rule which is per- [ Ivii ] 
fectly just with respect to one subject, is not applicable to 
another subject of a quite different nature. There are 
many cases, therefore, in which the law of Nature does 
not decide between state and state in the same manner as 
it would between man and man. We must therefore know 
how to accommodate the application of it to different sub- 
jects ; and it is the art of thus applying it with a precision 
founded on right reason, that renders the law of Nations a 
distinct science.(2) 



(2) M. de Vattel then proceeds to heads— /*!>*<, the natural law of na- 
state the different heads of interna- tions; and teeondlif, the potitive. The 
tional Iaw, which has heen variouslj former is that of Qod and our oon- 
fiibdiTided by other writers. The science, and conscqaently immutable, 
eleairost diyision is under two principal and ought to be the basis of the posi- 

b2 53 



Iviii 



IDEA AND GENERAL PRINCIPLES 



pRELiMi- Yfe call that the NecesBary Law of Nations which consists 

'-^ in the application of the law of nature to Nations. It is 

Uo o? the' ■^^<^^**^^ because nations are absolutely/ bound to observe it. 
nece»»aty '^^^^ ^^^ coutaius the prcccpts prescribed by the law of nature 
law of na- to States, on whom that law is not less obligatory than on in- 

tions. 



live laws of nations. The pontive is 
threefold; Firttf the umver»al volun- 
tary law or uniform practice of nations 
in general; secondly, the cuttomary 
law; and thirdly, the conventional law 
or treaties. (See 1 ChittT^s Commer- 
cial Law, 25 to 47.)— C. 

The following note of a former edi- 
tor is desenredlj retained. 

The study of the science of the law 
of nations presupposes an acquaint- 
ance with the ordinary law of nature, 
of which human individuals are the 
objects. Nevertheless, for the sake of 
those who have not systematically 
studied that law, it will not be amiss 
to give in this place a general idea of 
it. The natural law is the science of 
the laws of nature, of those laws which 
nature imposes on mankind, or to 
which they are subject by the very cir- 
cumstance of their being men; a sci- 
ence, whose first principle is this axiom 
of incontestable truth — ''The groat 
end of every being endowed with in- 
tellect and sentiment, is happiness." 
It is by the desire alone of that happi- 
ness, that we can bind a creature pos- 
sessed of the faculty of thought, and 
form the ties of that obligation which 
shall make him submit to any rule. 
Now, by studying the nature of things, 
and that of man in particular, we may 
thence deduce the rules which man 
must follow in order to attain his great 
end, — ^to obtain the most perfect hap- 
piness of which he is susceptible. We 
call those rules the natural laws, or 
the laws of nature. They are certain, 
they are sacred, and obligatory on 
every man possessed of reason, inde- 
pendently of every other considera- 
tion than that of his nature, and even 
though we should suppose him totally 
ignorant of the existence of a God. 
But the sublime consideration of an 
eternal, necessary, infinite Being, the 
author of the universe, adds the most 
lively energy to the law of nature, and 
carries it to the highest degree of per- 
fection. That necessary Being ne- 
cessarily unites in himself oil perfec- 
tion : he is, therefore, superlatively 
good, and displays his goodness by 
54 



forming creatures susceptible of hap- 
piness. It is then his wish that his 
creatures should be as happy as is con- 
sistent with their nature : consequently, 
it is his will that they should, in their 
whole conduct, follow the rules which 
that same nature lays down for thorn, 
as the most certain road to happiness. 
Thus the will of the Creator perfectly 
coincides with the simple indications 
of nature; and those two sources pro- 
ducing the same law, unite in forming 
the same obligation. The whole re- 
verts to the first great end of man, 
which is happiness. It was to con- 
duct him to that great end that the 
laws of nature were ordained : it is from 
the desire of happiness that his obliga- 
tion to observe those laws arises. 
There is, therefore, no man — what- 
ever may be his ideas respecting the 
origin of the universe — even if he had 
the misfortune to be an atheist — who 
ia not bound to obey the laws of na- 
ture. They are necessary to the gene- 
ral happiness of mankind; and who- 
ever should reject them, whoever should 
openly despise them, would by such 
eondnot alone declare himself an ene- 
my to the human race, and deserve to 
be treated as such. Now, one of the 
first truths which the study of man re- 
veals to us, and which is a necessary 
consequence of his nature, is, that in 
a state of lonely separation from the 
rest of his species, he cannot attain 
his great end — happiness : and the 
reason is, that he was intended to live 
in society with his fbllow^creaturea. 
Nature, herself, therefore^ has esta> 
blished that society, whose great end 
is the common advantage of oil its 
members; and the means of attaining 
that end constitute the rules that each 
individual is bound to observe in his 
whole conduct. Such are the natural 
laws of human society. Having thus 
given a general idea of them, which is 
sufficient for any intelligent reader, 
and is developed at large in several 
valuable works, let us return to the par. 
ticular object of this treatise. — Note 
ed. A. D. 1797. 



09 THE LAW OV NATIONS. Iviii 

dividnals, since states axe composed of men, their resolntions nxum- 
are taken by men, and the law of nature is binding on all ^^^™^- 



men, under whatever relation they act. This is the law 
-which Grotius, and those who follow him, call the Internal 
law ofNationSy on account of its being obligatory on nations 
in point of con8cience.(8) Several writers term it the Na- 
tural law of Nations. 

Since therefore the necessary law of nations consists in the j g. it u 
application of the law of nature to states, — which law is im- immutable, 
mutable, as being founded on the nature of things, and par- 
ticularly on the nature of man, — it follows that the Necessary 
law of nations is immutable. 

Whence, as this law is immutable, and the obligations that j 9. Nations 
arise from it necessary and indispensable, nations can neither can make 
make any changes in it by their conventions, dispense with itfo/'^»*»K« 
in their own conduct, nor reciprocally release each other from ^g^nsT 
the observance of it. with the ob- 

This is the principle by which we may distinguish lawful^fseMojn 
conventions or treaties from those that are not lawful, andf"*"*s fro™ 
innocent and rational customs from those that are unjust or ^^ 
censurable. 

There are things, jvst in themselves^ and allowed by the 
necessary law of nations, on which states may mutually agree 
with each other, and which they may consecrate and enforce 
by their manners and customs. There are others of an in- [ lix ] 
different nature, respecting which, it rests at the option of 
nations to make in their treaties whatever agreements they 
please, or to introduce whatever custom or practice they 
think proper. But every treaty, every custom, which con- 
travenes the injunctions or prohibitions of the Necessary law 
of nations is unlawful. It will appear, however, in the sequel, 
that it is only by the Internal law, by the law of Conscience, 
SQch conventions or treaties are always condemned as unlaw- 
ful, and that, for reasons which shall be given in their pro- 
per place, they are nevertheless often valid by the external 
law. Nations being free and independent, though the con- 
duct of one of them be illegal and condemnable by the laws 
of conscience, the' others are bound to acquiesce in it, when 
it does not infringe upon their perfect rights. The liberty 
of that nation would not remain entire, if the others were to 
arrogate to themselves the right of inspecting and regulating 
her actions ; an assumption on their part, that would be con- 
trary to the law of nature, which declares every nation free 
and independent of all the others. 

Man is so formed by nature, that he cannot supply all his j 10. So. 
own wants, but necessarily stands in need of the intercourse c^®*y e***- 
and assistance of his fellow-creatures, whether for his imme- ^^"^®^ ^y 

' nature 

between aU 
(3) See this position illustrated, mercial Law, 28, and n. (4), po9t, Ix. mankind. 
Mackintosh, Dia. 7; 1 Chitty's Com- —0. 

66 



lix IDEA AND QENBRAL PBINGIPLES 



diate preservationy or for the sake of perfecting his nature, 
- and enjoying such a life as is suitable to a rational being. 
This is sufficiently proved by experience. We have in- 
stances of persons, who, having grown up to manhood among 
the bears of the forest, enjoyed not the use of speech or of 
reason, but were, like the brute beasts, possessed only of sen- 
sitive faculties. We see moreover that nature has refused to 
bestow on men the same strength and natural weapons of de- 
fence with which she has furnished other animals — ^having, in 
lieu of those advantages, endowed mankind with the faculties 
of speech and reason, or at least a capability of acquiring 
them by an intercourse with their fellow-creatures. Speech 
enables them to communicate with each other, to give each 
other mutual assistance, to perfect their reason and know- 
ledge ; and having thus become intelligent, they find a thou- 
sand methods of preserving themselves, and supplying their 
wants. Each individual, moreover, is intimately conscious 
that he can neither live happily nor improve his nature with- 
out the intercourse and assistance of others. Since, there- 
fore, nature has thus formed mankind, it is a convincing 
[ Ix ] proof of her intention that they should communicate with, 
and mutually aid and assist each other. 

Hence is aeduced the establishment of natural society among 
men. The general law of that society w, that each indivi- 
dual should do for the others every thing which their necessities 
require^ and which he can perform tdthout neglecting the duty 
that he owes to himself: (4) a law which all men must observe 
in order to live in a manner consonant to their nature, and 
conformable to the views of their common Creator, — a law 
which our own safety, our happiness, our dearest interests, 
ought to render sacred to every one of us. Such is the gene- 
ral obligation that binds us to the observance of our duties: 
let us fulfil them with care, if we would wisely endeavour to 
promote our own advantage.(5) 

(4) Ante, Mi. n. (2), pott^ Ix. n. (4). whether the precise acta required of 

(5) See the Bftme position, pott^ him he or he not such as their own 
{ 13y and po9t, chap. il. } 2 and 88. municipal law will enforce; just so a 
The natural, or primary law, is that •tote, in its relations with other states, 
of God and our conscience, the law is bound to conduct herself in the 
which enjoins us to do good to our spirit of Justice, henerolence> and good 
neighbour, whether in literal strictness faith, even though there be no positiTe 
he may have a perfect right to demand roles of international law, by the let- 
such treatment from us or not. This ter of which she may be actually tied 
is a law that ought to be as strong in down. The same rules of morality 
obligation as the most distinct and which hold together men in families, 
positive rule, though it may not al- and which form families into a corn- 
ways be capable of the same precise monwealth, also link together seyeral 
definition, nor consequently may al- commonwealths as members of the 
low the same remedies to ei»/oree its ob- great society of mankind. Common- 
servance. As an individual is bound wealths, as weU as private men, are 
by the law of nature to deal honour- liable to injury, and capable of benefit 
ably and truly with other individuals, from each other; it is therefore their 

56 



OF THB LAW OF NATIONS. 

It is easy to eonceive what exalted felicity the world would 
enjoy, were all men willing to obserre the rule that we have, 
just laid down. On the contrary, if each man wholly and 
immediately directs all his thoughts to his own interesty if he 
does nothing for the sake of other men, the whole human race 
together wiU be immersed in the deepest wretchedness. Let 
Tis therefore endeavour to promote the general happiness of 
mankind : all mankind, in return, will endeavour to promote 
ours, and thus we shall establish our felicity on the most solid 
foundations. 

The universal society of the human race being an institu-?^^- ^^ 
tion of nature herself, that is to say, a necessary consequence ^J^^^^ 
of the nature of man, — all men, in whatever stations they 
are placed, are bound to cultivate ity and to discharge its 
duties. They cannot liberate themselves from the obligation 
by any convention, by any private association. When, there- 
fore, they unite in civil society for the purpose of forming a 
separate state or nation, they may indeed enter into particu- 
lar engagements towards those with whom they associate 
themselves ; but they remain still bound to the performance 
of their duties towards the rest of mankind. All the differ- 
ence consists in this, that having agreed to act in common, 
and having resigned their rights and submitted their will to 
the body of the society, in every thing that concerns their 
common welfare, it thenceforward belongs to that body, that 
state, and its rulers, to fulfil the duties of humanity towards [ 1^ ] 
strangers, in every thing that no longer depends on the 
liberty of individuals ; and it is the state more particularly 
that is to perform those duties towards other states. We have 
already seen, (§ 5), that men united in society remain subject 
to the obligations imposed upon them by human nature. 
That society, considered as a moral person, since possessed 
of an understanding, volition, and strength peculiar to itself, 
is therefore obliged to live on the same terms tvith other socie* 
ties or states^ as individual man was obliged, before those 
establishments^ to live with other men, that is to say, accord- 
ing to the laws of the natural society established among the 
human race, vrith the difference only of such exceptions as 
may arise from the different nature of the subjects. 



dnty to rerorence, to practise, and to tfs Commeroial Law, 28; Mackin- 

enforce, those roles of jastice which tosh, Disc. 7; Peake's Rep. 116; 2 

control and restrain injury, which Hen. Bla. 269 ; and see ante, J 7 ; and 

regnlate and angment benefit, which see extract ft-om Mr. Pitfs celebrated 

preserve civUieed states in a tolerable speech on concluding the commercial 

condition of security from wrong, and treaty between Great Britain and 

which, if they could be generally France in A. n. 1786, and in which he 

obeyed, would establish, and perma- powerfully refVited the doctrine of na^ 

oenUy maintain, the well-being of the tional and hereditary antipathy between 

nnirersal commonwealth of the human England and France, po«, book ii. chap. 

race. (See Observations in 1 Chit- ii. J 21, p. 144.— 0. 

8 67 



Ixi n>BA AND 0ENERAL PRINCIPLBS 



PBVLiiri. Since the object of the natural society established between 
^^^*^' all mankind is — ^that they should lend each other mutual as- 
oVoct^^' sistance, in order to attain perfection themselves, and to 
this 8oci- render their condition as perfect as possible, — and since na- 
ety of na- tions, Considered as so many free persons living together in 
Uons. a state of nature, are bound to cultivate human society with 

each other, — the object of the great society established by 
nature between all nations is also the interchange of mutwil 
assistance for their own improvement, and that of their con- 
dition. 
i 13. First The first general law that we discover in the very object 
general ob- of the socicty of nations, is that each individual nation is 
benefiTothe ^^^'^^ ^ Contribute evert/ thing in her power to the happiness 
nations, bat ^^ perfection of all the others.* 

not to pre- But the duties that we owe to ourselves being unquestion- 
judice itself, ably paramount to those we owe to others, — ^a nation owes 
herself in the first instance, and in preference to all other 
nations, to do every thing she can to promote her own hap- 
i 14. Ex- piness and perfection. (I say, every thing she caw, not only 
pianation in a physical but in a 7noral sense, — that is, every thing 
of this ob- that she can do lawfully^ and consistently with justice and 
serration. Ji^f^Qy^r,) When, therefore, she cannot contribute to the wel- 
fare of another nation without doing an essential injury to 
[ Ixii ] herself, her obligation ceases on that particular occasion, and 
she is considered as lying under a disability to perform the 
office in question. (6) 
§ 15. The Nations being free and independent of each other, in the 
second go- same manner as men are naturally free and independent, the 
?®™^ rh ^^^^^ general law of their society is, that each nation should 
ty and in-' *^ ^f^ *** *^^ peaceoilc enjoyment of that liberty which she in- 
dependence hcrits from nature. The natural society of nations cannot 
of nations, subsist, uulcss the natural rights of each be duly respected. 
No nation is willing to renounce her liberty ; she will rather 
break off all commerce with those states that should attempt 
to infringe upon it. 
i 16. Effect As a consequence of that liberty and independence, it ex- 
of thatuber- clusivcly belongs to each nation to form her own judgment of 
*y' what her conscience prescribes to her,— of what she can or 

cannot do,— of what it is proper or improper for her to do : and 



• Xenophon points out the true rea- n. (1), Ix. n. (5) ; Book iL chap. ii. } 21, 

son of this first of all duties, and esta- p. 144, /wwr.— C. 

blishes its necessity, in the following (6) Puffendorf, b. iii. c. S, s. 6, p. 29, 

words: — ''If we see a man who !s uni- writes dearly and decidedly on this 

formly eager to pursue his own pri- important subject; — ^he observes ''The 

yate advantage, without regard to the law of humanity does not seem to oblige 

rules of honour or the duties of friend- us to grant passage to any other 

ship, why should we in any emer- goods, except such as are absolutely 

gency think of sparing himT' Note necessary for the support of their 

edit. A, D. 1797. See modem authori- life to whom they are thus conveyed." 

ties in support of that position, antej Iv. — C. 
58 



OF THE LAW OF NATIONS. Ixil 



of course it rests solely -with her to examine and determine ^"■I'nn- 

wheiher she can perform any office for another nation without ^^ 

neglecting the duty which she owes to herself In all cases, 
therefore, in which a nation has the r^ht of judging what 
her duty requires, no other nation can compel her to act in 
such or such particular manner : for any attempt at such 
compulsion would be an infringement on the liberty of nations. 
We have no right to use constraint against a free person, ex- 
cept in those cases where such person is bound to perform 
some particular thing for us, and for some particular reason 
which does not depend on his judgment, — in those cases, in 
short, where we have a perfect right against him. 

In order perfectly to understand this, it is necessary to ob- ? i^- Dis- 
serve, that the obligation, and the right which corresponds *i»ction8 be- 
to or is derived from it, are distinguished into external ^^^i ntTand el- 
intemaL The obligation is internal^ as it binds the con- ternai, per- 
science^ and is deduced from the rules of our duty : it is ex- feet and im- 
temaly as it is considered relatively to other men, and pro- p®^*©* <>^1|- 
duces some right between them. The internal obligation is rights.^ *° 
always the same in its nature, though it varies in degree ; but 
the external obligation is divided into perfect and imperfect ; 
and the right that results from it is also perfect or imperfect. 
The perfect right is that which is accompanied by the right 
of compelling those who refuse to fulfil the correspondent ob- 
ligation ; the imperfect right is unaccompanied by that right 
of compulsion. The perfect obligation is that which gives to [ Ixiii ] 
the opposite party the right of compulsion; the imperfect 
gives him only a right to ask. 

It is now easy to conceive why the right is always imper- 
fect, when the correspondent obligation depends on the judg- 
ment of the party in whose breast it exists ; for if, in such a 
case, we had a right to compel him, he would no longer enjoy 
the freedom of determination respecting the conduct he is to 
pursue in order to obey the dictates of his own conscience. 
Our obligation is always imperfect with respect to other 
people, while we possess the liberty of judging how we are 
to act : and we retain that liberty on all occasions where we 
ought to be free. 

Since men are naturally equal, and a perfect equality pre- 2 is. Equai- 
vails in their rights and obligations, as equally proceeding ^^^ **^ ' 
from nature — ^Nations composed of men, and considered as "" 
flo many free persons living together in a state of nature, are 
naturally equal, and inherit from nature the same obligations 
and rights. Power or weakness does not in this respect pro- 
duce any difference. A dwarf is as much a man as a giant ; 
a small republic is no less a sovereign state than the most 
powerful kingdom. 

By a necessary consequence of that equality, whatever is ? i^- Effect 
lawful for one nation is equally lawful for any other ; and °^^. 
whatever is unjustifiable in the one is equally so in the other. ^^^ ^' 

59 



na- 
' tions. 



Ixiii IDEA AND GENERAL PRINCIPLES 

pRELim. A nation then is mistress of her own actions so long as 
. ^^^^^^' they do not affect the proper and perfect rights of any other 
§ 20. Each nation — so long as she is only internally hound, and does not 
ml^tres^of ^^® under any external and perfect obligation. If she makes 
her own ac- ^^ ^1 ^sc of her liberty, she is guilty of a breach of duty ; 
tions when but Other nations are bound to acquiesce in her conduct, 
they do not gince they have no right to dictate to her. 
perfect^* Since nations are freey independent^ and equal — and since 
righte of ©*<5h possesses the right of judging ^ according to the dictates 
others. of her conscience, what conduct she is to pursue in order to 
fulfil her duties ; the effect of the whole is, to produce, at 
dation of^^^®^* externally and in the eyes of mankind, a perfect 
the voiun- equality of rights between nations, in the administration of 
tary law of their affairs and the pursuit of their pretensions, without re- 
naUons. gard to the intrinsic justice of their conduct, of which others 
have no right to form a definitive judgment ; so that what- 
ever may be done by any one nation may be done by any 
[ Ixiv ] other ; and they ought, in human society, to be considered 
as possessing equal rights. 

Each nation in fact maintains that she has justice on her 
side in every dispute that happens to arise ; and it does not 
belong to either of the parties interested, or to other nations, 
to pronounce a judgment on the contested question The 
party who is in the wrong is guilty of a crime aga.n^>t her 
own conscience ; but as there exists a possibility that she may 
perhaps have justice on her side, we cannot accuse her of 
violating the laws of society. 

It is therefore necessary, on many occasions, that nations 
should suffer certain things to be done, though in their own 
nature unjust and condemnable ; because they cannot oppose 
them by open force, without violating the liberty of some 
particular state, and destroying the foundations of their 
natural society. And since they are bound to cultivate that 
society, it is of course presumed that all nations have con- 
sented to the principle we have just established. The rules 
that are deduced from it constitute what Monsieur Wolf calls 
"iAe voluntary law of nations ;" and there is no reason why 
we should not use the same term, although we thought it 
necessary to deviate from that great man in our manner of 
establishing the foundation of that law. (7) 

(7) The nahiral primary or intemai voluntary law, or those mlos which are 

law of nations which is thus binding considered to have become law by the 

in conscience, and immutable, it must unt/orm practice of nations in general, 

be admitted, is mere theory, until it has and by the manifest utility of the rulos 

been assented to by a -state as binding themselves; — eeeondly, the cuetomary 

on her : but besides that law of con- law, or that which, from motives of 

science, which, until so assented to, is convenience, has by tacit but implied 

imperfect, there is what is termed the agreement prevailed, not generally in- 

poeilive or eecondary law of nations, and deed among all nations, nor with so 

which is threefold; Jir9t, the universal paramount utility as to become a por- 

60 



OP THE LAW OF NATIONS. Ixiv 

The laws of natural society are of such importance to the pui'm* 
safety of all states, that, if the custom once prevailed of ; **""" 



trampling them under foot, no nation could flatter herself * ^^* .^**^' 
with the hope of preserving her national existence, and en- ^g^f^^^the 
joying domestic tranquillity, however attentive to pursue infractors 
every measure dictated by the most consummate prudence, o^ ^« ^^ 
justice, and moderation.* Now all men and all states have *^' "**^^"* 
a perfect right to those things that are necessary for their 
preservation, since that right corresponds to an indispensa- Right of de- 
ble obligation. All nations have therefore a right to resort ^^"^fi ^^' 
to forcible means for the purpose of repressing any one par- 
ticular nation who openly violates the laws of the society 
which Nature has established between them, or who directly 
attacks the welfare and safety of that society. 

But care must be taken not to extend that right to the { 23. Moa. 
prejudice of the liberty of nations. They are all free and^*"®^*^*** 
independent, but bound to observe the laws of that society '^^^^ 
which Nature has established between them; and so far 
bound, that, when any of them violates those laws, the others 
have a right to repress her. The conduct of each nation, [ Ixv ] 
therefore, is no further subject to the control of the others, 
than as the interests of natural society are concerned. The 
general and common right of nations over the conduct of any 
sovereign state is only commensurate to the object of that 
society which exists between them. 

tion of univenal voluntary law, but bear jon out in a fVirther progress; 

enough to hare acquired a pretcn'jttive thus, for inatanoo, on mere general 

obligation among certain states, so prindplesi it is lawftil to destroy your 

situated as to be mutually benefited by enemy, and mere general prinoiples 

it, as the customary law preyoiling make no great diiference as to the 

among different nations in the whale manner by which this is to be effected ; 

Ushery, and iUustrated by the decision but the conventional law of mankind, 

in Fenningt v. Lord Ortnville, 1 Taunt which is evidenced in their praeftoe, 

Bep. 241 f 248, upon the division of the does make a distinction, and allows 

profits arising from a whale when killed some and prohibits other modes of de* 

by the crews of several boats; and struetion; and a belligerent is bound 

ikirdly, the conventional law, or that to confine himself to those modes 

vhieh is a<7reec{ between particular states which the common practice of mankind 

by «xpr«w treatiet, a law binding only has employed, and to relinquish ** those 

upon the parties among whom such which the same practice has not 

treaties are in force. See 1 Chitty's brought within the ordinary exercise 

Commereial Law, 28, 29, and see pott, of war, however sanctioned by its prin- 

1 27, p. 66. oiples and purposes :" so it has ever 

In the case of the ship, Flad Oyen, been the practice of nations to bring 

1 Rob. Bep. 115, Sir William Scott ob- vessels captured by them into their own 

served, ''A great part of tiie law of ports, and to condemn them as piiie in 
nations stands on the ve€ige and prae- ' their own Admiralty Courts ; and there* 

tice of natione, and on no other founda- fore a sentence of condemnation in the 

tion : it is introduced, indeed, by gene- nentroU country would be iUegal and 

xal principles, but it travels with those void. Ihid, — 0. 
general principles only to a certain ez- * Etenim si haeo pertubare omnia 

tent; and if it stops there, you are et permiscere volumus, totam vitam, 

not at Uberty to go farther and to say, perioulosam, insidiosam, infestamque 

that mere general speculations would reddemus. Cicero in Yerr. iL 15. 

F 61 



kv IBBA AND GBNKEAL PRINCIPLES 



pRiLiMi. The several engagemewU into which nations may enter 
produce a new kind of law of nations, called Conventional^ 



NARIBB. 



2 24. Con- Qj. ^y Treaties. As it is evident that a treaty binds none 
II!^*ona»- ^^^ *^® contracting parties, the conventional law of nations 
doni, or law is not a universal but a particular law. All that can be done 
of treatiei. on this subject, in a treatise on the Law of Nations^ is to lay 
down those general rules which nations are bound to observe 
with respect to their treaties. A minute detail of the various 
agreements made between particular nations, and of the 
rights and obligations thence resulting, is matter of fact, and 
belongs to the province of history. 
J 25. Cus- Certain maxims and etutams, consecrated by long use, and 
tomaiyiaw observed by nations in their mutual intercourse with each 
na onB. ^^^ler as a kind of law, form the Customary Law of Nations, 
or the Ousitam of Nations. (8) This law is founded on a tadb 
consent, or, if you please, on a tacit convention of the nations, 
that observe it towards each other. Whence it appears that 
it is not obligatory except on those nations who have adopted 
it, and that it is not universal, any more than the (?ont^€n- 
tional law. The same remark, therefore, is equally applica- 
ble to this Clistomary law, viz. that a minute detail of its par- 
ticulars does not belong to a systematic treatise on the law 
of nations, but that we must content ourselves va\h giving a 
general theory of it ; that is to say, the rules which are to 
be observed in it, as well with a view to its effects, as to its 
substance : and with respect to the latter, those rules will 
serve to distinguish lawful and innocent customs from those 
that are unjust and unlawful. 
^ 26. Gone- When a custom or usage is generally established, either 
r^ "un " between all the civilized nations in the world, or only between 
t^Uw. those of a certain continent, as of Europe, for example, or 
between those who have a more frequent intercourse with 
each other ; if that custom is in its own nature indifferent, 
[ Ixvi ] and much more, if it be useful and reasonable, it becomes ob- 
ligatorv on all the nations in question, who are considered 
as having given their consent to it, and are bound to observe 
it towards each other, as long as they have not expressly de- 
clared their resolution of not observing it in future. (9) But 
if that custom contains any thing unjust or unlawful, it is 
not obligatory ; on the contrary, every nation is bound to re- 
linquish it, since nothing can oblige or authorize her to 
violate the law of nature. 

(8) From the authorities cited in (9) Ai to thi« position, tee further, 

B«M9t y. Pipon, Knapp's Rep. 67, it Marten's L. N. 356, and Fenningf v. 

•eeme, that most nations Agrt^, that Lord OrtnviUe, 1 Taunton's Rep. 248. 

twenty years' nnintermpted usage (for There must be a reaeonable notifloation, 

twetUy ytan is eyidence as weU of pvh' in point of time, of the intention not to 

lie and general euetome or praotiees as be bound by the customary law. Ibid. 

of private rights) is sufficient to suetain and 1 Chiity's Criminal Law 29, 35, 02. 

the came. — C. — C. 
62 



OF THE LAW OP NATIONS. Ixvi 

These three kinds of law of nations, the Voluntart/, the ^^^}J}f}- 
Oonventionaly and the (histomary^ together constitute the- 



Positive Law of Nation8.{10) For they all proceed from 2.^^-^ ^^^ 
the will of Nations ; the Voluntary from their preauvi^'^ ^^^"nltions.** 
sent, the Conventional from an express consent, an., the 
OusUyrnary from ta4sit consent ; and as there can be no other 
mode of deducing any law from the will of nations, there are 
only these three kinds of Positive Law of Nations. 

We shall be careful to distinguish them from the Natural 
or Necessary law of nations, without, however, treating of 
them separately. Sut after having, under each individual 
head of our subject, established what the Necessary law pre- 
scribes, we shall immediately add how and why the decisions 
of that law must be modified by the Voluntary law ; or (which 
amounts to the same thing in other terms) we shall explain 
how, in consequence of the liberty of nations, and pursuant 
to the ruUs of their natural society, the external law which 
they are to observe towards each other differs in certain in- 
stances from the maxims of the Internal law, which never- 
theless remains always obligatory in point of conscience. As 
to the rights introduced by Treaties or by Oustom^ there is 
no room to apprehend that any one will confound them with 
the Natural law of nations. They form that species of law 
of nations which authors have distinguished by the name of 
Arbitrary. 

To furnish the reader beforehand with a general direction J 28. Gene- 
respecting the distinction between the Necessary and the'^™*™' 
Voluntary law, let us here observe, that, as the J\re<j«Mary ^^^ J 
law is always obligatory on the conscience^ a nation ought the neccs- 
never to lose sight of it in deliberating on the line of conduct sary and 
she is to pursue in order to fulfil her duty; but when there **»« Y^^**- 
18 question of examining what she may demand of other **^ ^^' 
states, she must consult the Voluntary law, whose maxims 
are devoted to the safety and advantage of the \miversal 
society of mankind. 

(10) Bee DiTuion of Laws of Nations, a»f«, Ivii. n. (2).— C. 

63 



BOOK I. 
OF NATIONS CONSIDERED IN THEMSELVES. 



CHAP. I. 

OP NATIONS OR SOVBRBIGN STATBS.(IO) 

A NATION or a state is, as has been said at the beginning } i. Of the 
of this work, a body politic, or a society of men united to-^^*®*f^°' 
gethep for the purpose of promoting theur mutual safety andfJJ?"**"*^* 
advantage by their combined strength. 

From the very design that induces a number of men to form 
a society which has its common interests, and which is to act 
in concert, it is necessary that there should be established a 
PiMic Authority y to order and direct what is to be done by 
each in relation to the end of the association. This political 
authority is the Sovereignty ; and he or they who are in- 
vested with it are the Sovereign.{iS!i) 

It is evident, that, by the very act of the civil or political J 2. The 
association, each citizen subjects himself to the authority of "*^^*y °^ 
the entire body, in every thing that relates to the common ^^^^^ 
welfare. The authority of all over each member, therefore, the mem- 
essentially belongs to the body politic, or state; but the ex-beri. 
ercise of that authority may be placed in different hands, ac- 
cording as the society may have ordained. L 2 J 

If the body of the nation keep in it8 own hands the em- ? 3. Of the 

?ire, or the right to command, it is a Popular government, a^nS^f go- 
democracy ; if it intrust it to a certain nurnher of citizenSy yemment 
to a senate, it establishes an Aristocratic republic ; finally, 
if it confide the government to a single person^ the state b^ 
comes a Monarchy. {\1.) 

These three kinds of government may be variously com- 
bined and modified. We shall not here enter into the par- 

(10) The student deslrons of enlarg- ferent G-oyernmentfl ; and see Coots de 

ing his knowledge npon this subject Droit Pnblio Interne et Bxterne, Paris, 

should read Locke on Goremment; De A. n. 1830. — 0. 

liolme on the Constitation ; 1 Bla. Com. (11) See the advantages and disad- 

47 ; Sedgwick's Commentaries thereon ; yantages of each of those forms of go- 

and Chitty Junior's Prerogatives of the vemment shortly considered. 1 Bla. 

Crown as regards Sovereignty and dif- Com. 49, 50. — C. 

9 f2 65 



OR 

BOOK I. ticulars ; this subject belonging to the pvhlic universal law :* 
CHAP, I. £qj. ^^q object of the present work, it is suflScient to establish 



the general principles necessary for the decision of those dis- 
putes that may arise between nations. 
^ 4. What Every nation that governs itself, under what form soever, 
areiove- without dependence on any foreign power, is a Sovereign 
reign states. State, Its rights are naturally the same as those of any other 
state. Such are the moral persons who live together in a 
natural society, subject to the law of nations. To give a na- 
tion a right to make an immediate figure in this grand society, 
it is sufGicient that it be really sovereign and independent, 
that is, that it govern itself by its own authority and laws. 
i 5. Of We ought, therefore, to account as sovereign states those 

states bound which havc United themselves to another more powerful, by 
by unequal ^n unequal alliance^ in which, as Aristotle says, to the more 
aUiance. powerful {g given more honour, and to the weaker, more as- 
sistance. 

The conditions of those unequal alliances may be infinitely 
varied. But whatever they are, provided the inferior ally 
reserve to itself the sovweignty, or the right of governing its 
own body, it ought to be considered as an independent state, 
that keeps up an intercourse with others under the authority 
of the law of nations. 
§ 6. Or by Consequently a weak state, which, in order to provide for 
treaties of its Safety, placcs itself under the protection of a more power- 
protection. {^ q^q^ ^mj engages, in return, to perform several offices 
[ 3 ] equivalent to that protection, without however divesting itself 
of the right of government and sovereignty, — ^that state, I 
say, does not, on this account, cease to rank among the sove- 
reigns who adknowledge no other law than that of nations. (12) 

* Nor shall we examine which of minished through your fault" " True," 
those difierent kinds of goremment is replied the king : "I shall leave them 
the best. ItwiU be sufficient to eay a smaller portion of it; but it will 
in general, that the monarchical form rest uiK>n a firmer basis." The Lace, 
appears preferable to every other, pro- dsemonians, during a certain period. 
Tided the power of the sovereign be had two chiefs to whom they very im- 
limited, and not absolute,— qui [prin- properly gave the title of kings. They 
cipatus] turn demum regius est, ri in- were magistrates, who possessed a very 
tra modestisB et mediocritatis fines se limited power, and whom it was not 
contineaty ezcessu potestatis, quam im- unusual to cite before the tribunal of 
prudentes in dies angere satagunt^ justice, — to > arrest^ — ^io condemn to 
minuitur, penitosque corrumpitur. Nos death. — Sweden acts with less impro- 
Btultfy majoris^ potentins specie deoepti, priety in oontinning to bestow on hex 
dilabimur in eontrarium, non satis chief the title of king, although she has 
oonsiderantes earn demum tutam esse circumscribed his power within very 
potentiam quad viribus modum imponit narrow bounds. He shares not his 
The maxim has both truth and wisdom authority with a colleague, — ^he is 
on its side. The author, here quotes hereditary, — and the state hut, from 
the saying of Theopompus, king of time immemorial, borne the title of a 
Sparta, who, returning to his house kingdom. — Edit a. d. 1797. 
amidst the acclamations of the peo« (12) This and other rules respect- 
pie, after the establishment of the ing smaller states sometimes form the 
Ephori — <'Tou will leave to your chil- subject of consideration even in the 
dren (said his wife) an authority di- Municipal Courts. In case of a re- 
00 



SOVEREIGN STATES. 3 

There occurs no greater difficulty with respect to tributary book i. 
states ; for though the payment of tribute to a foreign power - ^°^^' '' 



does in some degree diminish the dignity of those states, from ? *!* ^^ 
its being a confession of their weakness, — ^yet it suffers their ^J^ 
sovereignty to subsist entire. The custom of paying tribute 
was formerly very common, — ^the weaker by that means pur- 
chasing of their more powerful neighbour an exemption from 
oppression, or at that price securing his protection, without 
ceasing to be sovereigns. 

The Germanic nations introduced another custom — ^that|8. Of 
of requiring homage from a state either vanquished, or too feudatory 
weak to make resistance. Sometimes even, a prince has****^^ 
given sovereignties in fee, and sovereigns have voluntarily 
rendered themselves feudatories to others. 

When the homage leaves independency and sovereign au- 
thority in the administration of the state, and only means 
certain duties to the lord of the fee, or even a mere honorary 
acknowledgment, it does not prevent the state or the feuda- 
tory prince being strictly sovereign. The king of Naples 
pays homage for his kingaom to the pope, and is nevertheless 
reckoned among the principal sovereigns of Europe. 

Two sovereign states may also be subject to the same? 9. or two 
prince, without any dependence on each other, and each may ■'*^' ^'*^- 
retain all its rights as a free and sovereign state. The king 8^^*^^^^^ 
of Prussia is sovereign prince of Neufchatel in Switzerland, 
without that principality being in any manner united to his 
other dominions ; so that the people of Neufchatel, in virtue 
of their franchises, may serve a foreign power at war with 
the king of Prussia, provided that the war be not on account 
of that principality. 

Finally, several sovereign and independent states may J lo. Of 
unite themselves together by a perpetual confederacy, with- f***®^ form- 
out ceasing to be, each individually, a perfect state. They|j^*^^*j^°J*®'*^ 
will together constitute a federal republic: their joint de- 
liberations will not impair the sovereignty of each member, 
though they may, in certain respects, put some restraint on 
the exercise of it, in virtue of voluntary engagements. A per- 
son does not cease to be free and independent,, when he is obliged 
to fulfil engagements which he has voluntarily contracted. 

Such were formerly the cities of Greece ; such are at present 
the Seven United Provinces of the Netherlands,(13) and such 
the members of the Helvetic body. 

Tolled eoloDj, or part of a parent or Tltompton t. Potolet, 2 Sim. Rep. 202 ; 

principal state, no subject of another TrUarri y. CUmentf 2 Car. & P. 223; 

state can legally make a contract with 11 B. Hoore, 308 ; 3 Bing. 432 ; and 

it or assist the same without leave of po9t, — C. { The United State* y. Palmer, 

his own goremment^ before its sepa- 8 Wheat 610. See Cherriot y. Fouseat, 

rate independence has been recog- 3 Binn. 252. } 

vised by his own government Jones (13) Of course, the words "o« pre- 

v. Oareia del Rio, 1 Turn. A Russ. 297 } «ent" refer only to the tame when 

67 



3 aENERAL PKIKGIPLES OF 

BOOK I. But a people that has passed under the dominion of an- 

^^^^' '' other is no longer a state, and can no longer avail itself directly 

f 11. Of a of the law of nations. Such were the nations and kingdoms 

hM^passed "^^^^ *^® Romans rendered subject to their empire; the 

under the generality even of those whom they honoured with the name 

dominion of of fricuds and allies no longer formed real states. Within 

another, themsclvos they were governed by their own laws and magis- 

[ 4 ] trates ; but without, they were in every thing obliged to follow 

the orders of Rome ; they dared not of themselves either to 

make war or contract alliances ; and could not treat with 

nations. 

1 12. The The law of nations is the law of sovereigns ; free and inde- 

objeota of pendent states are moral persons, whose rights and obligations 

Uiia treauae. ^^ ^^^ ^^ establish in this treatise. 



CHAP. n. 

GENERAL PRINCIPLES OP THE DUTIES OP A NATION TOWARDS 

ITSELF. 



J 13. A na- IF the rights of a nation spring from its obligations, it is 
to Lrf ^* principally from those that relate to itself. It will further 
grewibiy to app^^r, that its duties towards others depend very much on 
its nature, its duties towards itself, as the former are to be regulated 
(1*) and measured by the latter. As we are then to treat of the 

obligations and rights of nations, an attention to order re- 
quires that we should begin by establishing what each nation 
owes to itself. 

The general and fundamental rule of our duties towards 
ourselves is, that every moral being ought to live in a manner 
conformable to his nature, naturce canvenienter vivere.(l^) 
A nation is a being determined by its essential attributes, 
that has its own nature, and can act in conformity to it. 
There are then actions of a nation as such, wherein it is con-^ 
cerned in its national character, and which are either suitable 

Vattel wroto, and it is nnneoessary to has acquired powers far beyond it? 

mention otherwise than thus cursorily diminutive extent. These being esta- 

the notorious recent changes. — C. blished, it becomes the duty of such 

(14) If to particularize may be a state, and of those exercising the 

allowed, we may instance Great Bri- powers of goTenunent, to cultivate and 

tain. Comparatiyely, with regard to improve these natural advantages ; and 

dimensions, it would be but an insig- in that view the ancient exclusive 

nificant state; but with regard to its navigation system, constituting Eng- 

insular situation and excellent ports, land the carrier of Europe and the 

and its proximity to Europe, and above world, were highly laudable ; and it is 

all the singularly manly, brave, and to bo hoped that a return of the system, 

adventurous character of ite natives, injudiciously abandoned, will ere I0114: 

it has been capable of acquiring and take place. — C. 
68 



THE DUTIES OF A NATION, ETC. 4 

or opposite to what constitutes it a nation ; so that it is not book i. 
a matter of indifiFerence whether it performs some of those ^"^^- "• 
actions, and omits others. In this respect, the Law of Nature 
prescribes it certain duties. We shall see, in this first book, 
what conduct a nation ought to observe, in order that it may 
not be wanting to itself. But we shall first sketch out a 
general idea of this subject. 

He who no longer exists can have no duties to perform : and § 14. of 
a moral being is charged with obligations to himself, only with th® preser- 
a view to his perfection and happiness : for to preserve and to ^*^°°^j*q^ 
perfect his own nature^ is the sum of all his duties to himself, of agnation. 

The preservation of a nation consists in the duration of the 
political association by which it is formed. If a period is 
put to this association, the nation or state no longer subsists, 
though the individuals that composed it still exist. 

The perfection of a nation is found in what renders it 
capable of obtaining the end of civil society ; and a nation is 
in a perfect state, when nothing necessary is wanting to arrive 
at that end. We know that the perfection of a thing con- 
sists, generally, in the perfect agreement of all its constituent 
parts to tend to the same end. A nation being a multitude 
of men united together in civil society — ^if in that multitude 
all conspire to attain the end proposed in forming a civil 
society, the nation is perfect; and it is more or less so, 
according as it approaches more or less to that perfect agree- [ 5 ] 
ment. In the same manner its external state will be more 
or less perfect, according as it concurs with the mterior per- 
fection of the nation. 

The end or object of civil society is to procure for the ? i^. Wht^ 
citizens whatever they stand in need of for the necessities, "j*|!®®°^®^ 
the conveniences, the accommodation of life, and, in general, ®*^* society. 
whatever constitutes happiness, — with the peaceful possession 
of property, a method of obtaining justice with security, and, 
finally, a mutual defence against all external violence. 

It is now easy to form a just idea of the perfection of a 
state or nation :— every thing in it must conspire to promote 
the ends we have pointed out. 

In the act of association, by virtue of which a multitude J 16. a na- 
of men form together a state or nation, each individual has ^^^^ is under 
entered into engagements with all, to promote the g^^^^^^l ^^^ to ^r^ 
welfare ; and all have entered into engagements with each J^^ ^^l^^ 
individual, to facilitate for him the means of supplying his 
necessities, and to protect and defend him. It is manifest 
that these reciprocal engagements can no otherwise be fulfilled 
than b^ maintaining the political association. The entire 
nation is then obliged to maintain that association ; and as 
their preservation depends on its continuance, it thence 
follows that every nation is obliged to perform the duty of 
self-preservation. 

This obligation, so natural to each individual of God's 

69 



6 GENERAL PRINCIPLES OF 

BOOK I. creation, is not derived to nations immediately from nature, 
CHAP. II. y^^^ f^^^ ^j^g agreement by which civil society is formed: it 
is therefore not absolute, but conditional, — ^that is to say, it 
supposes a human act, to wit, the social compact. And as 
compacts may be dissolved by common consent of the parties 
— ^if the individuals that compose a nation should unanimously 
agree to break the link that binds them, it would be lawful 
for them to do so, and thus to destroy the state or nation ; 
but they would doubtless incur a degree of guilt, if they took 
this step without just and weighty reasons ; for civil societies 
are approved by the Law of Nature, which recommends them 
to mankind, as the true means of supplying all their wants, 
and of effectually advancing towards their own perfection. 
Moreover, civil society is so useful, nay so necessary to all 
citizens, that it may well be considered as morally impossible 
for them to consent unanimously to break it without necessity. 
But what citizens may or ought to do— what the majority of 
them may resolve in certain cases of necessity or of pressing 
exigency — are questions that will be treated of elsewhere: 
they cannot be solidly determined without some principles 
which we have not yet established. For the present, it is 
sulBcient to have proved, that, in general, as long as the poli- 
tical society subsists, the whole nation is obliged to endeavour 
to maintain it. 
J 17. And If a nation is obliged to preserve itself, it is no less obliged 
itom^Vra ^^^^^^^^'j *^ preserve all its members. The nation owes this 
™ * to itself, since the loss even of one of its members weakens it, 
and is injurious to its preservation. It owes this also to the 
members in particular, in consequence of the very act of asso- 
ciation ; for those who compose a nation are united for their 
[ 6 ] defence and common advantage ; and none can justly bo de- 
prived of this union, and of the advantages he expects to de- 
rive from it, while he on his side fulfils the conditions.(16) 

The body of a nation cannot then abandon a province, a 

town, or even a single individual who is a part of it, unless 

compelled to it by necessity, or indispensably obliged to it by 

the strongest reasons founded on the public safety.ri6) 

J 18. A na- Since then a nation is obliged to preserve itseli, it has a 

tion has a right to ovcry thing necessary for its preservation. For the 

ev^^^ Uiin ^^^ ^^ Nature gives us a right to every thing without which 

necessary ^^ cannot fulfil our obligation ; otherwise it would oblige us 

for its pro- ~ ~ ' " 

serration ^^^^ ^^" principle is in every re- self. This is the principle upon which 

speot recognised and acted upon hy is founded the rule " Nemo potett tznere 

our municipal law. It is in respect of, patn'am" Calvin*» case, 7 Coke, 25 ; 

and as a duo return for, the protection Co. Lit 129, a ; and see an interest- 

every natural bom subject is entitled ing application of that rule in MtK^ 

to, and actually does, by law, receive donald*» case, Forster's Grown Law, 

from the instant of his birth, that aU 59.— C. 

the obligations of allegiance attach (16) In tracing the consequences of 

upon him, and from which he cannot this rule, wo shall hereafter perceive how 

by any act of his own emancipate him- important is the rule itself. — C. 
70 



THH DUTIES OF A NAWOK, **&. 6 

to do impossibilities, or rather would contradict itself ih p^- book i. 
scribing us a duty, and at the same time debarring us of the ^^^^' °' 
only means of fidfilling it. It will doubtless be here unfder- 
Btood, that those means ought not to be unjust in themselves, 
or such as are absolutely forbidden by the Law of Nature. 
As it is impossible that it should ever permit the use of such 
means, — ^if * on a particular occasion no other present them- 
selves for fulfilling a general obligation, the obligation must, 
in that particular instance, be looked on as impossible, and 
consequently void. 

By an evident consequence from what has been said, a na- j 19. it 
tion ought carefully to avoid, as much as possible, whatever ought to 
mifi^ht cause its destruction, or that of the state, which is the *^.*^^** ^7®*^ 

^^ ,1 . ' ' thing that 

same thing. might occa- 

A nation or state has a right to every thing that can help sion its de- 
to ward off imminent danger, and keep at a distance whatever Btniotion. 
is capable of causing its ruin ; and that from the very same ? ^^: ^^ 
reasons that establish its right to the things necessary to its evory thing 
preservation. (17) that may 

The second general duty of a nation towards itself is to promote 
labour at its own perfection and that of its state. It is tbis***^^®*^^* 
double perfection that renders a nation capable of attaining ^^j^'^^j^^*" 
the end of civil society: it would be absurd to unite in to perfect 
society, and yet not endeavour to promote the end of that itself and 
union. ^^ '****«• 

Here the entire body of a nation, and each individual citi- 
zen, are bound by a double obligation, the one immediately 
proceeding from nature, and the other resulting from their 
reciprocal engagements. Nature lays an obligation upon each 
man to labour after his own perfection ; and in so doing, he 
labours after that of civil society, which could not fail to be 
very flourishing, were it composed of none but good citizens. 
But the individuaLfinding in a well-regulated society, the most 
powerful succours to enable him to fulfil the task which Na- 
ture imposes upon him in relation to himself, for becoming 
better, and consequently more happy^-^ is doubtless obliged 
to contribute all in his power to render that society more 
perfect. 

All the citizens who form a political society reciprocally 
engage to advance the common welfare, and as far as possi- [ 7 ] 
ble to promote the advantage of each member. Since then 
the perfection of the society is what enables it to secure 
equally the happiness of the body and that of the members, 
the grand object of the engagements and duties of a citizen 
is to aim at this perfection. This is more particularly the 

(17) Salua populi auprema evt lex, the property of any private individoal. 
Upon this principle it has been esta- See Governors, Jtc. v. Meredith, 4 Term 
blished, that for national defence in Rep. 79^7. — C. 
war, it IS legal to poll down or injure 

71 



GBNEEAL PRIN0IPLB8 01 

BOOK X. duty of the body collective in all their common deliberationSi 
CHAP. n. gjj^i jij every thing they do as a body.(18) 



1 22. And to ^ nation therefore ought to prevent, and carefully to avoid, 
thhi^oon!^ whatever may hinder its perfection and that of the state, or 
trary to its retard the progress either of the one or the other.(19) 
perfection. We may then conclude, as we have done above in rejjard to 

1 23. The the preservation of a state (§ 18), that a nation has a right to 
'^ea'from*" ^^^^7 t^^^g without which it cannot attain the perfection of 
^ese obu- ^^^ members and of the state, or prevent and repel whatever 
gationB. is Contrary to this double perfection. 

2 24. Bx- On this subject, the English furnish us an example highly 
ampies, worthy of attention. That illustrious nation distinguishes 
itself in a glorious manner by its application to every thing 
that can render the state more flourishing* An admirable 
constitution there places every citizen in a situation that ena- 
bles him to contribute to this great end, and everywhere dif- 
fuses that spirit of genuine patriotism which zealously exerts 
itself for the public welfare. We there see private citizens 
form considerable enterprises, in order to promote the glory 
and welfare of the nation. And while a bad prince would 
find his hands tied up, a wise and moderate king finds the 
most powerful aids to give success to his glorious designs. 
The nobles and the representatives of the people form a link 
of confidence between the monarch and the nation, and, con- 
curring with him in every thing that tends to promote the 
public welfare, partly ease him of the burden of government, 
give stability to his power, and procure him an obedience the 
more perfect, as it is voluntary. Every good citizen sees that 
the strength of the state is really the advantage of all, and 
not that of a single person.(20^ Happy constitution ! which 
they did not suddenly obtain: it has cost rivers of blood; but 
they have not purchased it too dear. May luxury, that pest 
80 fatal to the manly and patriotic virtues, that minister of 
corruption so dangerous to liberty, never overthrow a monu- 
ment that does so much honour to human nature — a monu- 
ment capable of teaching kings how glorious it is to rule over 
a free people ! 

(18) In a highly intolligont and ool. as to the duty of all nationa to prevent 
tiratod society like England, this prin- the yiolation of the law of nations. — C. 
ciple is exemplified in an extraordinary (20) This is indeed a flattering com. 
degree ; for in the leglslatiro assemhly, pliment from Vattol, a foreigner ; but 
members of parliament^ without any certainly it is just; for although, as a 
privato Interest excepting the approba. commercial nation, it might be sup- 
tion of their countrymen, almost de- posed that each indi?idual principally 
stroy themselves by exertion in discus- labours for his own individual gain ; 
sing the improvement of existing regu- yet when we ref^sr to the spirited em- 
lations ; and this Indeed even to excess ployment of capital in building na- 
M regwrds long speeches, sometimes tional bridges, canals, rail-roads, Ac, 
even counteracting their own laudable not yielding even 2L per cent,, it must 
endeavours. — C. be admitted that great public spirit for 

(19) See Book I. «hap. xxiii. { 283, national good rerj generally prevaila 
72 -0. 



TfiB DUTIES OP A NATION, ETC. 7 

Th6fe is another nation illustrious by its bravery and its book i. 
victories. Its numerous and valiant nobility, its extensive -H5fEiiL_ 
and fertile dominions, might render it respectable throughout 
all Europe, and in a short time it might be in a most flourish- 
ing situation, but its constitution opposes this ; and such is 
its attachment to that constitution, that there is no room to 
expect a proper remedy will ever be applied. In vain might 
a magnanimous king, raised by his virtues above the pursuits 
of ambition and injustice, form the most salutary designs for [ ^ ] 
promoting the happiness of his people ; — ^in vain might those 
designs be approved by the more sensible part, by the ma- 
jority of the nation ; — a single deputy, obstinate, or corrupted 
by a foreign power, might put a stop to all, and disconcert 
the wisest and most necessary measures. From an excessive 
jealousy of its liberty, that nation has taken such precautions 
as must necessarily place it out of the power of the king to 
make any attempts on the liberties of the public. But is it 
not evident that those precautions exceed the end proposed, 
— that they tie the hands of the most just and wise prince, 
and deprive him of the means of securing the public freedom 
against the enterprises of foreign powers, and of rendering 
the nation rich and happy ? Is it not evident that the nation 
has deprived itself of the power of acting, and that its coun- 
cils are exposed to the caprice or treachery of a single member ? 

We shall conclude this chapter, with observing that a 2 25. Ana. 
nation ought to know itself. {21) Without this knowledge it ^on ought 
cannot make any successful endeavours after its own per- ^^ ? J^jx 
fection. It ought to have a just idea of its state, to enable 
it to take the most proper measures ; it ought to know the 
progress it has already made, and what further advances it 
has still to make, — ^what advantages it pbssesses, and what 
defects it labours under, in order to preserve the former, and 
correct the latter. Without this knowledge a nation will act 
at random, and often take the most improper measures. It 
will think it acts with great wisdom in imitating the conduct 
of nations that are reputed wise and skilful, — ^not perceiving 
that such or such regulation, such or such practice, though 
salutary to one state, is often pernicious to another. Every 
thing ought to be conducted according to its nature. Nations 
cannot be well governed without such regulations as are 
suitable to their respective characters ; and in order to this, 
their characters ought to be known. 

(21) Thia is one of the Bonndest and trae wisdom. Eyery moral and wise 

most important principles that can be man should enlarge on this principle, 

adyanced, whether it refers to individu- and among others study that ezoeUonty 

als or to naUons, and is essential even but too little known, work, Mason on 

to the attainment of the rudiments of Belf-Enowledge. 



10 a 73 



BOOK I. 
CHAP. in. 



OP THB CONSTITUTION OP A STATB. 



CHAP. III. 

AND THB DUTIES AND 
RIGHTS OF THE NATION IN THIS RESPECT. 



WE were unable to avoid, in the first chapter, anticipating 
something of the subject of this. 
2 26. Of We have seen already that every political society must 
public au- necessarily establish a public authority to regulate their com- 
t onty. ^^^ affairs, — ^to prescribe to each individual the conduct he 
ought to observe with a view to the public welfare, and to 
possess the means of procuring obedience. This authority 
essentially belongs to the body of the society ; but it may be 
exercised in a variety of ways ; and every society has a right 
to choose that mode which suits it best, 
g 27. What The fundamental regulation that determines the manner in 
is the con- which the public authority is to be executed, is what forms 
stitutionof ^he constitution of the state. In this is seen the form in 
* '^^' which the nation acts in quality of a body politic, — how and 
[ 9 '] by whom the people are to be governed, — and what are the 
rights and duties of the governors. This constitution is in 
fact nothing more than the establishment of the order in 
which a nation proposes to labour in common for obtaining 
those advantages with a view to which the political society 
was established. 
J 28. The The perfection of a state, and its aptitude to attain the ends 
nation of society, must then depend on its constitution : consequently 
choo8e*the ^^^ °^^^* important concern of a nation that forms a political 
best oonsti- society, and its first and most essential duty towards itself, is 
tution. to choose the best constitution possible, and that most suita- 
ble to its circumstances. When it makes this choice, it lays 
the foundation of its own preservation, safety, perfection, and 
happiness : — it cannot take too much care in placing these on 
a solid basis. 
i 29. Of The laws are regulations established by public authority, 
political, to be observed in society. All these ought to relate to the 
[1^°^*°;^^ welfare of the state and of the citizens. The laws made di- 
law*** °"^ rectly with a view to the public welfare are political laws; and 
in this class, those that concern the body itself and the being 
of the society, the form of government, the manner in which 
the public authority is to be exerted, — those, in a word, which 
together form the constitution of the state, are the funda- 
mental laws. 

The civil laws are those that regulate the rights and con- 
duct of the citizens among themselves. 

Every nation that would not be wanting to itself, ought to 
apply its utmost care in establishing these laws, and princi- 
pally its fundamental laws, — in establishing them, I say, with 

7i 



OP THE CONSTITTJTION OP A STATE. 9 

wisdom, in a manner suitable to the genius of the people, and b<m>k i. 
to all the circumstances in which they may be placed : they ^"^^'"^ 
ought to determine them and make them known with plain- 
ness and precision, to the end that they may possess stability, 
that they may not be eluded, and, that they may create, if 
possible, no dissension — ^that, on the one hand, ne or they 
to whom the exercise of the sovereign power is committed, 
and the citizens, on the other, may equally know their duty 
and their rights. It is not here necessary to consider in de- 
tail what that constitution and those laws ought to be : that 
discussion belongs to public law and politics. Besides, the 
laws and constitutions of different states must necessarily 
vary according to the disposition of the people, and other cir- 
cumstances. In the Law of Nations we must adhere to gene- 
rals. We here consider the duty of a nation towards itself, 
principally to determine the conauct that it ought to observe 
in that great society which nature has established among all 
nations. These duties give it rights, that serve as a rule to 
establish what it may require from other nations, and recipro- 
cally what others may require from it. 

The constitution and laws of a state are the basis of the i 30. Of the 
public tranquillity, the firmest support of political authority, '^PPO'* of 
and a security for the bberty of the citizens. But this con- ^^^^ ^^ 
stitution is a vain phantom, and the best laws are useless, if obedience 
they be not religiously observed : the nation ought then to to the lawn. 
watch very attentively, in order to render them equally re- [ 10 ] 
spected by those who govern, and by the people destined to 
obey. To attack the constitution of the state, and to violate 
its laws, is a capital crime against society ; and if those guilty 
of it are invested with authority, they add to this crime a 
perfidious abuse of the power with which they are intrusted. 
The nation ought constantly to repress them with its utmost 
vigour and vigilance, as the importance of the case requires. 

It is very uncommon to see the laws and constitution of a 
state openly and boldly opposed: it is against silent and 
gradual attacks that a nation ought to be particularly on its 
guard. Sudden revolutions strike the imaginations of men : 
they are detailed in history ; their secret springs are deve- 
loped. But we overlook the changes that insensibly happen 
by a long train of steps that are but slightly marked. It 
would be rendering nations an important service to show from 
history how many states have thus entirely changed their na- 
ture, and lost their original constitution. This would awaken 
the attention of mankind : — impressed thenceforward with 
this excellent maxim (no less essential in politics than in 
morals) principiU oi«to,— they would no longer shut their 
eyes against innovations, which, though inconsiderable in them- 
selves, may serve as steps to mount to higher and more per- 
nicious enterprises. 

The consequeuGes of a good or bad constitution being of 

76 



10 OF THE CONSTITTJTION OF A STATE. 

BOOK 1. guch importance, and the nation being strictly obliged to pro- 
CHAP. m. ^^j.g^ g^g f^j, ^ possible, the best and most convenient one, it 



goyem- 
ment 



^'^h ^^ ^^ ^ tig^t to every thing necessary to enable it to fulfil this 
nation wiSi obligation (§ 18). It is then manifest that a nation has an 
respect to indisputable right to form, maintain, and perfect its constitu- 
itfi conati- tion, to regulate at pleasure every thing relating to the go- 
^^^^*^* vernment, and that no person can have a just right to hinder 
"""*'" it. Government is established only for the sake of the na- 
tion, with a view to its safety and happiness. 
i 82. It If any nation is dissatisfied with the public administration, 
may reform i|; m^y apply the ncccssary remedies, and reform the govem- 
ment*^^™' ^®^*' ^^^ obscrve that I say "the nation;" for I am very 
far from meaning to authorize a few malcontents or incendia- 
ries to give disturbance to their governors by exciting mur- 
murs and seditions. None but the body of a nation have a 
right to check those at the helm when they abuse their power. 
When the nation is silent and obeys, the people are con- 
sidered as approving the conduct of their superiors, or at least 
finding it supportable ; and it is not the business of a small 
number of citizens to put the state in danger, under the pre- 
tence of reforming it. 
i 33. And In virtue of the same principles, it is certain that if the 
may change nation is uneasv under its constitution, it has a right to 
tatioT'"' change it. 

There can be no difficulty in the case, if the whole nation 
be unanimously inclined to make this change. But it is 
asked, what is to be done if the people are divided ? In the 
[ 11 ] ordinary management of the state, the opinion of the majority 
must pass without dispute for that of the whole nation; 
otherwise it would be almost impossible for the society ever 
to take any resolution. It appears then, by parity of rea- 
soning, that a nation may change the constitution of the state 
bv a majority of votes ; and whenever there is nothing in this 
cnange that can be considered as contrary to the act of civil 
association, or to the intention of those united under it, the 
whole are bound to conform to the resolution of the major- 
ity. (22) But if the question be, to quit a form of govern- 
ment, to which alone it appeared that the people were willing 
to submit on their entering into the bonds of society, — if the 
greater part of a free people, after the example of the Jews 
in the time of Samuel, are weary of liberty, and resolved to 
submit to the authority of a monarch, — those citizens who are 
more jealous of that privilege, so invaluable to those who 

(22) In 1 Bla. Com. 51-2, it is con- but that doctrine, as regards the moral 

tended, thaty unless in cases where duty to observe laws, has been justly 

the natural law or contcienee dictates refuted. See Sedgwick's Common- 

the observance of municipal laws, it taries, 61; 2 Bos. A Pul. 375; 6 Bar. 

is optional, in a moral view, to ob- A Aid. 341 ; ted vide 13 Ves. jun. 315, 

serve the positive law, or to pay the 316. — C. 
penalty when detected in the breach ; 
76 



OF THE CONSTITUTION OP A STATE. 11 

haye tasted it, though obliged to suffer the majority to do as book i. 
they please, are under no obligation at all to submit to the ^^^^' '"' 
new government : they may quit a society which seems to 
have dissolved itself in order to unite again under another 
form: they have a right to retire elsewhere, to sell their 
' lands, and take with them all their effects. 

Here, again, a very important question presents itself. It 1 34. Of 
essentially belongs to the society to make laws both in rela- ^^ legisla- 
tion to the manner in which it desires to be governed, and to^^J^^™^^ 
the conduct of the citizens : this is called the legislative power, a can 
The nation may intrust the exercise of it to the prince, or to change the 
an assembly; or to that assembly and the prince jointly ; ®^'^**^***^o'*- 
who have then a right to make new laws and to repeal old ^^^^ 
ones. (23) It is asked, whether their power extends to the 
fundamental laws — ^whether they may change the constitution 
of the state ? The principles we have laid down lead us to 
decide with certainty, that the authority of these legislators 
does not extend so far, and that they ought to consider the 
fundamental laws as sacred, if the nation has not, in very 
express terms, given them power to change them. For the 
constitution of the state ought to possess stability : and since 
that was first established by the nation, which afterwards 
intrusted certain persons with the legislative power, the fun- 
damental laws are excepted from their commission. It is 
visible that the society only intended to make provision for 
having the state constantly furnished with laws suited to 
particular conjunctures, and, for that purpose, gave the legis- 
lature the power of abrogating the ancient civil and political 
laws that were not fundamental, and of making new ones ; 
but nothing leads us*to think that it meant to submit the con- 
stitution itself to their will. In short, it is from the constitur 
tion that those legislators derive their power : how then can 
they change it without destroying the foundation of their own 
authority: By the fundamental laws of England, the two 
houses of parliament, in concert with the king, exercise the 
legislative power : but, if the two houses should resolve to 
suppress themselves, and to invest the king with full and ab- 
solute authority, certainly the nation would not suffer it. [ 12 ] 
And who would dare to assert that they would not have a 
right to oppose it ? But if the parliament entered into a 
debate on making so considerable a change, and the whole 

(23) Thus, daring the lut war, Eng* being considered uaconstitational dele- 
liah acts of Parliament delegated to gations of powers of altering the /«Mi<fa- 
the king in cooncQ the power of making mental lawsi part of the eonstitation 
temporary orders and laws regulating itaelf ; but eren then, the mles or 
oonuneroe. So by a bill of 3 Will. 4, orders so made are not absolutely to 
power was proposed to be given to become law until they have been sub- 
eight of the judges to make mles and mitted to, and not objected against, 
orders respecting pleading, these not in parliament during six weeks. — C. 

o2 77 



12 



OF THE SOYBBEIGN. 



BOOK I. 
CHAP, m. 

2 35. The 
nation 
ought not 
to attempt 
it without 
great cau- 
tion. 



§36. It is 
the judge of 
all disputes 
relating to 
the govern- 
ment. 

2 37. No 
foreign 
power has 
a right to 
interfere. 



nation was voluntarily silent upon it, this would be considered 
as an approbation of the act of its representatives. 

But m treating here of the change of the constitution, we 
treat only of the right : the question of expediency belongs 
to politics. We shall therefore only observe in general, that . 
great changes in a state being delicate and dangerous opera- 
tions, and frequent changes being in their own nature pre- 
judicial, a people ought to be very circumspect in this point, 
and never be inclined to make innovations without the most 
pressing reasons, or an absolute necessity. The fickleness 
of the Athenians was ever inimical to the happiness of the 
republic, and at length proved fatal to that liberty of which 
they were so jealous, without knowing how to enjoy it. 

We may conclude from what has been said (§ 31), that if 
any disputes arise in a state respecting the fundamental 
laws, the public administration, or the rights of the different 
powers of which it is composed, it belongs to the nation alone 
to judge and determine them conformably to its political 
constitution. 

In short, all these affairs being solely a national concern, 
no foreign power has a right to interfere in them, nor ought 
to intermeddle with them otherwise than by its good offices, 
unless requested to do it, or induced by particular reasons. 
If any intrude into the domestic concerns of another nation, 
and attempt to put a constraint on its deliberations, they do 
it an injury. 



(v .^.U..} C |v^ . ^1 i? . 



CHAP. IV. 



CHAP. IV. OP THE SOVEREIGN, HIS OBLIGATIONS, AND HIS RIGHTS. 

§ 88. Of the THE reader cannot expect to find here a long deduction 

soyeroign. ^f ^he rights of sovereignty, and the functions of a prince. 

' These are to be found in treatises on the public law. In this 

chapter we only propose to show, in consequence of the grand 

principles of the law of nations, what a sovereign is, and to 

give a general idea of his obligations and his rignts. 

We have said that the sovereignty is that public authority 
which commands in civil society, and orders and directs what 
each citizen is to perform, to obtain the end of its institution. 
This authority originally and essentially belonged to the body 
of the society, to which each member submitted, and ceded 
his natural right of conducting himself in every thing as he 
pleased, according to the dictates of his own understanding, 
and of doing himself justice. But the body of the society 
does not always retain in its own hands tms sovereign au- 
thority : it frequently intrusts it to a senate, or to a single 
person. That senate, or that person, is then the sovereign. 

78 



OF THE SOVEREIGN. 18 

It is evident that men form a political society, and submit book l 
to laws, solely for their own advantage and safety. The - *^"^^* ^^' 



sovereign authority is then established only for the common ? ^^' ^ *■ 
good of all the citizens ; and it would be absurd to think that^^^^^^j^" 
it could change its nature on passing into the hands of a safety and 
senate or a monarch. Flattery, therefore, cannot, without advantage 
rendering itself equally ridiculous and odious, deny that the ^^ society. 
sovereign is only established for the safety and advantage of 
society. 

A good prince, a wise conductor of society, ought to have 
his mind impressed with this great truth, that the sovereign 
power is solely intrusted to him for the safety of the state, 
and the happiness of all the people ; that he is not permitted 
to consider himself as the principal object in the administra- 
tion of affairs, to seek his own satisfaction, or his private 
advantage ; but that he ought to direct all his views, all his 
steps, to the greatest advantage of the state and people who 
have submitted to him.* Wliat a noble sight it is to see a- 
king of England rendering his parliament an account of his 
principal operations — assuring that body, the representatives 
of the nation, that he has no other end in view than the glory 
of the state and the happiness of his people — and affection- 
ately thanking all who concur with him in such salutary 
views ! Certainly, a monarch who makes use of this lan- 
guage, and by his conduct proves the sincerity of his pro- 
fessions, is, in the opinion .of the wise, the only great man. . 
But, in most kingdoms, a criminal flattery has long since 
caused these maxims to be forgotten. A crowd of servile 
courtiers easily persuade a proud monarch that the nation 
was made for him, and not he for the nation. He soon con- 
siders the kingdom as a patrimony that is his own property, 
and his people as a herd of cattle from which he is to derive 
his wealth, and which he may dispose of to answer his own 
views, and gratify his passions. Hence those fatal wars 
undertaken by ambition, restlessness, hatred, and pride ; — 
hence those oppressive taxes, whose produce is dissipated by 
ruinous luxury, or squandered upon mistresses and favourites ; 
— hence, in fine, are important posts given by favour, while 
public merit is neglected, and every thing that does not im- 
mediately interest the prince is abandoned to ministers and 
subalterns. Who can, in this unhappy government, discover 
an authority established for the public welfare ? A great 

* The lui words of lionis VL to fore liad done on similar ocoaaions) that 

his son Lonis VII. were—" Remem- " a single hour's attention devoted by a 

ber, my son, thai royalty is but a pnblio prince to tho care of his state, is of 

employment^ of which yon must render more use and consequence than all the 

a rigorous account to him who is the homage and prayers he coald offer up 

sole disposer of crowns and sceptres." to God daring his whole life." The 

Abbe VeUe/s Hist of France, Vol. III. same sentiment is found in the Koran. 

p. 65. Hist, of Timnr-Bec, Book IL ch. xli. 

Timor-Bee declared (as he often be- 

79 



14 OF THE SOVEREIGN. 



BOOK I. prince will be on his guard even against his virtues. Let ua 
CHAP. IV. jjqIj gj^y^ ^^j^ g^jjjg writers, that private virtues are not the 
virtues of kings — a maxim of superficial politicians, or of 
[ 14 ] those who are very inaccurate in their expressions. Good- 
ness, friendship, gratitude, are still virtues on the throne ; 
and would to God they were always to be found there ! But 
a wise king does not yield an undiscerning obedience to their 
impulse. He cherishes them, he cultivates them in his private 
life ; but in state affairs he listens only to justice and sound 
policy. And why? because he knows that the government 
was intrusted to him only for the happiness of society, and 
that, therefore, he ought not to consult his own pleasure in 
the use he makes of his power. He tempers his goodness 
with wisdom ; he gives to friendship his domestic and private 
favours ; he distributes posts and employments according to 
merit ; public rewards to services done to the state. Li a 
word, he uses the public power only with a view to the public 
welfare. All this is comprehended in that fine saying of 
Lewis XII. : — " A king of France does not revenge the in- 
juries of a duke of Orleans." 
§ 40. Of his A political society is a moral person (Prelim. § 2) inasmuch 
repreeenta- as it has an understanding and a will, of which it makes use 
tiTc ciiarao- f^^ ^j^^ conduct of its affairs, and is capable of obligations 
and rights. When, therefore, a people confer the sovereignty 
on any one person, they invest him with their understanding 
and will, and make over to him their obligations and rights, 
so far as relates to the administration of the state, and to the 
exercise of the public authority. The sovereign, or conductor 
of the state, thus becoming the depositary of the obligations 
and rights relative to government, in him is found the moral 
person, who, without absolutely ceasing to exist in the nation, 
acts thenceforwards only in him and by him. Such is the 
origin of the representative character attributed to the sove- 
reign. He represents the nation in all the affairs in which 
he may happen to be engaged as a sovereign. It does not 
debase the dignity of the greatest monarch to attribute to 
him this representative character ; on the contrary, nothing 
sheds a greater lustre on it, since the monarch thus unites in 
^^t^^ his own person all the majesty that belongs to the entire body 
withtheob.of*l^©i^ation. 

ligations of The Sovereign, thus clothed with the public authority, with 
tho nation, every thing that constitutes the moral personality of the 
and inyestod nation, of course bccomes bound by the obligations of that 
rights. nation, and invested with its rights. 

2 42. His All that has been said in Chap. II. of the general duties 
duty with of a nation towards itself particularly regards the sovereign, 
respect to jj^ jg ^j^^ depositary of the empire, and of the power of com- 
Tatiorand ^^aiiding whatever conduces to the public welfare; he ought, 
perfection of therefore, as a tender and wise father, and as a faithful ad- 
the nation, ministrator, to watch for the nation, and take care to preserve 

80 



OP THE SOVEREIGN. 14 

it, and render it more perfect ; to better its state, and to book i. 
secure it, as far as possible, against every thing that threatens ^°^^' '^' 
its safety or its happiness. 

Hence all the rights which a nation derives from its obli- j 43. hib 
gation to preserve and perfect itself, and to improve its state, rights in this 
(see §§ 18, 20, and 23, of this book) ; all these rights, I say, ^^^p®^'*- 
reside in the sovereign, who is therefore indifferently called [ 15 ] 
the conductor of the society, superior, prince, &c. 

We have observed above, that every nation ought to know § 44 He 
itself. This obligation devolves on the sovereign, since it is ought to 
he who is to watch over the preservation and perfection of ^^^^ ^^ 
the nation. The duty which the law of nature here imposes ^^^ ^^' 
on the conductors of nations is of extreme importance, and 
of considerable extent. They ought exactly to know the 
whole country subject to their authority; its qualities, de- 
fects, advantages, and situation with regard to the neigh- 
bouring states ; and they ought to acquire a perfect know- 
ledge of the manners and general inclinations of their people, 
their virtues, vices, talents, &c. All these branches of know- 
ledge are necessary to enable them to govern properly. 

The prince derives his authority from the nation ; he pos- j 45. The 
sesses just so much of it as they have thought proper to intrust extent of his 
him with.* If the nation has plainly and simply invested ^^®'^* 
him with the sovereignty, without limitation or division, he is 
supposed to be invested with all the prerogatives, without Preroga- 
which the sovereign command or authority could not be ex- ^}^^^ of ma- 
erted in the manner most conducive to the public welfare. ^^^^^' 
These are called regal preroffatives, or the prerogatives of 
majesty. 

But when the sovereign power is limited and regulated by j 46. The 
the fundamental laws of the state, those laws show the prince pnnoe 
the extent and bounds of his power, and the manner in which ^^«^^ ^ 
he is to exert it. The prince is therefore strictly obliged not^^p^^^^^^^ 
only to respect, but also to support them. The constitution funda- 
and the fundamental laws are the plan on which the nation mental 
has resolved to labour for the attainment of happiness ; the ^*^^^ 
execution is intrusted to the prince. Let him religiously 
follow this plan ; let him consider the fundamental laws a^ 
inviolable and sacred rules ; and remember that the momeni 
ho deviates from them, his commands become unjust, and are 
but a criminal abuse of the power with which he is intrusted. 
He is, by virtue of that power, the guardian and defender of 



* Noqne enim so princeps reipubliceo the sorereign. Quod caput est, sit 

et singoloram dominnm arbitrabitar, prinoipi persnasnm, totins reipnblicsB 

qaamvis assentatoribus id in aorem majorem qnam ipsius nnlus anctorita- 

inffasmrantibus, sed roctorem mercede tern esse: nequo pessimis hominibus 

a civibns designata, qnam angere, nisi credat diversum aArmantibns gratifi« 

ip3ia Tolentibas, nefiu existlinabit candi studio ; qu89 magna pernicies est. 

Ibid. c. r. — From this principle it fol- Ibid. 
Iowa that the nation is superior to 

11 81 



15 OF THE SOYEEEIGN. 

BOOK I. the laws : and while it is his duty to restrain each daring 
^°^^' '^' violator of them, ought he himself to trample them under 

foot?* 
§ 47. He If the prince be invested with the legislative power, he may, 
toe^iBWB^t ^^^^^g ^ ^ wisdom, and when the public advantage re- 
fundAmen- <l^^ it, abolish those laws that are not fundamental, and 
tai. make new ones. (See what we have said on this subject in 

the preceding chapter, § 34.) 
1 48. He But while these laws exist, the sovereign ought religiously 
ought to to maintain and observe, them. They are the foundation of 
anT(Jb8ervo *^® Public tranquillity, and the firmest support of the sove- 
tho oxisting ^oigu authority. Every thing is uncertain, violent, and subject 
laws. to revolutions, in those unhappy states where arbitrary power 

has placed her throne. It is therefore the true interest of the 
prince, as well as his duty, to maintain and respect the laws ; 
he ought to submit to them himself. We find this truth esta- 
blished in a piece published by order of Lewis XIY., one of 
the most absolute princes that ever reigned in Europe. ^^Let 
it not be said that the sovereign is not subject to the laws of 
his state, since the contrary proposition is one of the truths 
of the law of nations, which flattery has sometimes attacked, 
and which sood princes have always defended, as a tutelar 
divinity of their states."t 
^ 49. In But it is necessary to explain this submission of the prince 
what 8«^f® to the laws. First, he ought, as we have just seen, to follow 
to the laws! ^^^^^ regulations in all the acts of his administration. In the 
second place, he is himself subject, in his private affairs, to 
all the laws that relate to property. I say, "in his private 
affairs;" for when he acts as a sovereign prince, and in the 
name of the state, he is subject only to the fundamental laws, 
and the law of nations. In the third place, the prince is sub- 
ject to certain regulations of ceneral polity, considered by the 
state as inviolable, unless he be excepted in express terms by 
the law, or tacitly by a necessary consequence of his dignity. 

* In some eoantries, formal pre- paet generations, who formerly made 
cantionB are taken against the ahnse effectnal use of arms and decrees to 
of power. — ^<<Refleeting among other reduce within proper hounds such of 
things (says Grotius), that princes are their sorereigns as had transgressed 
often found to make no scruple of yio- the line of duty, whether through their 
lating their promises under the stole own licentiousness or the artifices of 
pretext of the public good, the people their flattorers. Thus it happened to 
of Brabant, in order to obviate that John the Second ; nor would they eon- 
inconyenience, established the custom sent to make peace with him or his 
of never admitting their prince to the successors, until those princes had en- 
possession of the goyemment without tered into a solemn engagement to 
haying previously made with him a secure the citisens in the enjoyment 
covenant, that, whenever he may hap- of their privileges." Annals of thf* 
pen to violate the laws of the country, Netherlands, Book II. note, edit. a. i>. 
they shall be absolved flrom the oath 1707. 

of obedience they had sworn to him, f A treatise on the right of the queen 

nntU ample reparation be made for to several state* of the Spanish mon- 

the outrages committed. The truth archy, 1607, in 12mo, Part II. p. 191. 
of this is confirmed by the example of 
82 



OF THE SOYEREION. 16 

I here speak of the laws that relate to the situation of indi- book i. 
viduals, and particularly of those that regulate the validity -i!ILi!liIi- 
of marriages. These laws are established to ascertain the 
state of families : now the royal family is that of all others 
the most important to be certainly known. But, fourthly, we 
shall observe in general, with respect to this question, that, 
if the prince is invested with a full, absolute, and unlimited 
sovereignty, he is above the laws, which derive from him all 
their force ; and he may dispense with his own observance of [ 17 ] 
them, whenever natural justice and equity will permit him. 
Fifthly, as to the laws relative to morals and good order, the 

Jrince ought doubtless to respect them, and to support them 
y his example. But, sixthly, he is certainly above all civil 
penal laws. The majesty of a sovereign will not admit of his 
being punished like a private person ; and his functions are 
too exalted to allow of his being molested under pretence of 
a fault that does not directly concern the government of the 
state. 

It is not sufficient that the prince be above the penal laws : ? so. iiis 
even the interest of nations requires that we should go some-^*"*^** ^^ f^" 
thing farther. The sovereign is the soul of the society ; if yj^iab^e. " 
he be not held in veneration by the people, and in perfect 
security, the public peace, and the happiness and safety of the 
state, are in continual danger. The safety of the nation then 
necessarily requires that the person of the prince be sacred 
and inviolable. The Roman people bestowed this privilege 
on their tribunes, in order that they might meet with no ob- 
Btruction in defending them, and that no apprehension might ' 

disturb them in the discharge of their office. The cares, the 
employments of a sovereign, are of much greater importance 
than those of the tribunes were, and not less dangerous, if he 
be not provided with a powerful defence. It is impossible 
even for the most just and wise monarch not to make mal- 
contents ; and ought the state to continue exposed to the dan- 
ger of losing so valuable a prince by the hand of an assassin ? 
The monstrous and absurd doctrine, that a private person is 
permitted to kill a bad prince, deprived the French, in the 
beginning of the last century, of a hero who was truly the 
fadier of his people.* Whatever a prince may be, it is an 
enormous crime against a nation to deprive them of a sove- 
reign whom they think proper to obey.f 

* Since the abore was written, France made hy Damien to oMatnnate Zauit 

"hu witneflsed 4 renewal of those hor- JTF.] Note, edit. a.d. 1797. 
ron. She sighs at the idea of haying f In Mariana's work, above quoted, 

given birth to a monster capable of I find (chap. vlL towards the end) a 

violating the nu^esty of kings in the remarkable instance of the errors into 

person of a prince, whom the qualities whioh we are apt to be led by a subtle 

of his heart entiUe to the love of his sophistry destitute of sound principles, 

subjects and the veneration of foreign- That author allows us to poison a 

ers. [Tl« oMikor allude* to ike attempt tyrant^ and even a public enemy, pro- 

83 



17 



OF THE SOVEREIGN. 



BOOK I. 
CHAP. IV. 

§ 51. But 
the nation 
may curb 
a tyrant, 
and with- 
draw itnelf 
from his 
obedience. 

[18] 



But this high attribute of sovereignty is no reason why the 
-nation should not curb an insupportable tyrant, pronounce 
sentence on him (still respecting in his person the majesty of 
his rank) and withdraw itself from his obedience. To this 
indisputable right a powerful republic owes its birth. The 
tyranny exercised by Philip II. in the Netherlands excited 
those provinces to rise : seven of them, closely confederated, 
bravely maintained their liberties, under the conduct of the 
heroes of the House of Orange ; and Spain, after several vain 
and ruinous efforts, acknowledged them sovereign and inde- 
pendent states. If the authority of the prince is limited and 
regulated by the fundamental laws, the prince, on exceeding 
the bounds prescribed him, commands without any right and 
even without a just title : the nation is not obliged to obey 
him, but may resist his unjust attempts. As soon as a prince 
attacks the constitution of the state, he breaks the contract 
which bound the people to him ; the people become free by 
the act of the sovereign, and can no longer view him but 
as a usurper who would load them with oppression. This 
truth is acknowledged by every sensible writer, whose pen is 
not enslaved by fear, or sold for hire. But some celebrated 
authors maintain, that if the prince is invested with the 
supreme command in a full and absolute manner, nobody has 
a right to resist him, much less to curb him, and that naught 
remains for the nation but to suffer and obey with patience. 
This is founded upon the supposition that such a sovereign is 
not accountable to any person for the manner in which he 
governs, and that if the nation might control his actions and 
resist him where it thinks them unjust, his authority would 
no longer be absolute; which would be contrary to this 
hypothesis. They say that an absolute sovereign completely 
possesses all the political authority of the society, which no- 
body can oppose ; that, if he abuses it, he does ill indeed, and 
wounds his conscience ; but that his commands are not the 
less obligatory, as being founded on a lawful right to com- 
mand ; that the nation, by giving him absoulte authority, has 
reserved no share of it to itseS, and has submitted to his 
discretion, &c. We might be content with answering, that 



vided it be done without obliging him, 
either by force or through mistake or 
ignorance, to concur in the act that 
causes his own death, — which would be 
the case, for instance, in presenting him 
a poisoned draught For (says he), in 
thus leading him to an act of suicide, 
although committed through ignorance, 
we make him Tiolate the natural law 
which forbids each individual to taJke 
away his own life; and the crime of 
him who thus unknowingly poisons him- 
self redounds on the real author, — ^tho 
84 



person who administered the poison. — 
Ne oogatur tantum sciens aut impni- 
dons sibi conscire mortem; quod esse 
nefas judicamus, veneno in potu aut 
cibo, quod hauriat qui perimendus est^ 
aut simili alia rctemperato. A fine 
reason, truly ! Was Mariana disposed 
to insult the understandings of his read- 
ers, or only desirous of throwing a 
slight varnish over the detestable doc- 
trine contained in that chapter ? — ^Note, 
edit A.D. 1797. 



OF THE SOVEREIGN. 18 

in this light there is not any sovereign who is completely and book i. 
fully absolute. But in order to remove all these vain subtle- -EHHii!!. 
ties, let us remember the essential end of civil society. Is it 
not to labour in 'concert for the common happiness of all ? 
Was it not with this view that every citizen divested himself 
of his rights, and resigned his liberty ? Could the society 
make such use of its authority as irrevocably to surrender 
itself and all its members to the discretion of a cruel tyrant ? 
No, certainly, since it would no longer possess any right 
itself, if it were disposed to oppress a part of the citizens. 
When, therefore, it confers the supreme and absolute govern- 
ment, without an express reserve, it is necessarily with the 
tacit reserve that the sovereign shall use it for the safety of 
the people, and not for their ruin. If he becomes the scourge 
of the state, he degrades himself; he is no better than a 
public enemy, against whom the nation may and ought to 
defend itself; and if he has carried his tyranny to the utmost 
height, why should even the life of so cruel and perfidious an 
enemy be spared ? Who shall presume to blame the conduct 
of the Roman senate, that declared Nero* an enemy to his 
country ? 

But it is of the utmost importance to observe, that this [ 19 ] 
judgment can only be passed by the nation, or by a body 
which represents it, and that the nation itself cannot make 
any attempt on the person of the sovereign, except in cases 
of extreme necessity, and when the prince, by violating the 
laws, and threatening the safety of his people, puts himself 
in a state of war against them. It is the person of the sove- 
reign, not that of an unnatural tyrant and a public enemy, 
that the interest of the nation declares sacred and inviolable. • 
We seldom see such monsters as Nero. In the more common 
cases, when a prince violates the fundamental la"svs ; when he 
attacks the liberties and privileges of his subjects ; or (if he 
be absolute) when his government, without being carried to 
extreme violence, manifestly tends to the ruin of the nation ; 
it may resist him, pass sentence on him, and withdraw from 
his obedience ; but though this may be done, still his person 
should be spared, and that for the welfare of the state.* It 

* Diasimulandum censeo quatenus Henrico hujas abnepote ob ignaviam 

salas publica patiatur, pnvatimqao pravosque mores abdicato procernm 

eomiptls moribus princeps contingat; suffragiie, primnm Alfonsus ejus frater, 

aUoqain si rempublieam in pcriculum recto an secus non dlsputo, sed tamen 

Tocat, si patrisa religionis contemptor in fcenera eetato rex est proclamatas: 

ezisti^ neque medicinam uUam re- deinde defuncto Alfonso, Elisabetha 

cipi^ abdicandum judico, alium sub- ejus soror, Henrico invito, rorum sum- 

stitaendum ; quod in Hispania non mam ad se traxit, regio tantum nomine 

semel fuisse factum scimus : quasi fera abstinens dum iUe vixit. Mariana, de 

irritata, omnium tolls peti debet, cum, Kcge ct Regis Institut Lib. I. c. iii. 

hnmanitato abdicata, tyrannum induit. To this authority, furnished by Spain, 

Sic Petro rege ob immanitatom dejecto join that of Scotland, proved by the 

pablice, Honricus ejus frator, qnamvis lettor of the barons to the pope, datod 

ex imparl mutre, regnum obtinuit. Sic April 6, 1320, requesting him to pre- 

H 85 



20 



OP THE SOVEREIGN. 



BOOK I. 

CHAP. nr. 



is above a century since the English took up arms against 
-their king, and obliged him to descend from the throne. A 
set of able, enterprising men, spurred on by ambition, took 
advantage of the terrible ferment caused by fanaticism and 
party spirit ; and Great Britain suffered her sovereign to die 
unworthily on a scaffold. The nation coming to itself dis- 
covered its former blindness. If, to this day, it still annually 
makes a solemn atonement, it is not only, from the opinion 
that the unfortunate Charles I. did not deserve so cruel a 
fate, but, doubtless, from a conviction that the very safety 
of the state requires the person of the sovereign to be held 
sacred and inviolable, and that the whole nation ought to 
render this maxim venerable, by paying respect to it when 
the care of its own preservation will permit. 

One word more on the distinction that is endeavoured to 
be made here in favour of an absolute sovereign. Whoever 
has well weighed the force of the indisputable principles we 
have established, will be convinced, that when it is necessary 
to resist a prince who has become a tyrant, the right of the 
people is still the same, whether that prince was made abso- 
lute by the laws, or was not ; because that right is derived 



Tail on the king of England to desist 
from his enterprises against Scotland. 
After having spoken of the evils they 
had suffered from him, they add — A 
qnibns mails innumeris, ipso javanto 
qui post vulnera medetnr et sanat, 
liberati sumns per serenissimum prin- 
cipem regem et dominum nostrum, 
dominum Robertum, qui pro populo et 
hffiredltato suis de manibus inimicorum 
liberandis, quasi alter Maccabsus aut 
Josue, labores et teedia, inediM et pe- 
ricula, IsBto sustinuit animo. Qucm 
etiam divina dispositio, et (juzta leges 
et consuetudines nostras, qnas usque 
ad mortem sustinero volumus) juris 
successio, et debitor nostrorum con- 
sensus et assonsus nostrum feccrunt 
principcm atque regem: cui, tanquam 
illi per qucm salus in populo facta est, 
pro nostra libertate tuenda, tam jure 
quam mentis tonemur, et volumus in 
omnibus adhaerero. Qucm, si ab in- 
ceptis dosistet, regi Anglorum aut 
Anglis nos aut regnum nostrum volens 
subjicere, tanquam Inimicnm nostrum 
et sui nostrique juris subversorem, 
statim expellere nitemnr, et alium 
regem nostrum, qui ad defensionem 
nostram sufficiet, faciemus: quia, 
quamdiu centum viri romanserint, nun- 
quam Anglorum dominto allquatenus 
volumus subjugari. Non enim propter 
gloriam, divitios, aut honores pngna- 
mus, sed propter libertatem solummodo, 
86 



quam nemo, bonus ni^i simnl com vita 
amittit. 

"In the year 1581" (says Grotius, 
Ann. Book III.) "the confederated 
provinces of the Netherlands — after 
having for nine years continued to 
wage war against Philip the Second, 
without ceasing to acknowledge him 
as their sovereign — at length solemnly 
deprived him of the authority he had 
possessed over their country, because 
ho had violated their laws and privi- 
leges." The author afterwards ob- 
serves, that "France, Spain herself, 
England, Sweden, Denmark, furnish 
instances of kings deposed by their 
people; so that there are at present 
few sovereigns in Europe whose right 
to the crown rests on any other founda- 
tion than the right which the people 
possess of divesting their sovereign of 
his power when he makes an ill use 
of it." Pursuant to this idea, the 
United Provinces, in their justificatory 
letters on that subject, addressed to 
the princes of the empire and tho king 
of Denmark — after having enumerated 
the oppressive acts of the king of Spain, 
added — "Then, by a mode which has 
been often enough adopted even by 
those nations that now livo under 
kingly government, we wrested tho 
sovereignty from him whose actions 
wore all contrary to the duty of a 
prince." Ibid.— Note, edit A. n, 1797. 



OF THS SOyEfifitGlTi 20 

from what ia the object of all political society-— the stifely of book i. 
the nation, which is the supreme law.* But, if the distinc — ^"^'*' ^' 
tion of which we are treating is of no moment with respect to 
the right, it can be of none in practice^ with respect to expe- 
diency. As it is very difficult to oppose an absolute prince, 
and it cannot be done without raising great disturbances in 
the state, and the most violent and dangerous commotions, it 
ought to be attempted only in cases of extremity, when the 
public miseries are raised to such a height that the people may^ 
say with Tacitus, miseram pacem vel bello bene mutari, that 
it is better to expose themselves to a civil war than to endure 
them. But if the prince's authority is limited, if it in some 
respects depends on a senate, or. a parliament that represents 
the nation, there are means of resisting and curbing him, 
without exposing the state to violent shocks. When mild and 
innocent remedies can be applied to the evil, there can be no 
reason for waiting until it becomes extreme. 

But however limited a prince's authority may be, he is ^ 52. Arbu 
commonly very jealous of it ; it seldom happens that he pa- tration be- 
tiently suffers resistance, and peaceably submits to the judg- ^^^^ *^® 
ment of his people. Can he want support, while he is thej^j^a^y^^^g 
distributor of favours ? We see too many base and ambitious [ 21 1 
souls, for whom the state of a rich and decorated slave has 
more charms than that of a modest and virtuous citizen. It 
is therefore always difficult for a nation to resist a prince and 
pronounce sentence on his conduct, without exposing the state 
to dangerous troubles, and to shocks capable of overturning 
it. This has sometimes occasioned a compromise between the 
prince and the subjects, to submit to the decision of a friendly 
power all the disputes that might arise between them. Thus 
the kings of Denmark, by solemn treaties, formerly referred 
to those of Sweden the differences that might arise between 
them and their senate ; and this the king^ of Sweden have 
also done with regard to those of Denmark. The princes and 
states of West Friesland, and the burgesses of Embden, have 
in the same manner constituted the republic of the United 
Provinces the judge of their differences. The princes and the 
city of Neufchatel established, in 1406, the canton of Berne 
perpetual jud^e and arbitrator of their disputes. Thus also, 
according to the spirit of the Helvetic confederacy, the entire 
body takes cognisance of the disturbances that arise in any 

* Popnli patroBi non pandora neqiie Est tamen salataria cogitatio, at sit 

minora pnssidiahabent. Certearepub- prinoipibos persuasain, si rempublicam 

liea, nnde ortnm habet regia potestas, oppreseerint, si yitiis et fgeditate intole- 

rebiu exigentibus, rogens in jus vocari randi erant, ca se conditione viTere, at 

potest, et,' si sanitatcm respnat^ princi- non jure tantum, sed cum laude ot 

spoliari; noqae ita in principem gloria, perimi possint Ibid. — ^Note,edit. 



jnra potostati« transtoli^ ut non sibi ▲. D. 1797. 

B^Jorem rogerrftrit potestatem. Ibid. 

cap. tL 87 



21 OF THE SOVEREIGN. 

BOOK I. of the confederated states, though each of them is truly sove- 
^"^'*' '^' reign and independent. 

i 53. The As soon as a nation acknowledges a prince for its lawful 
obedience sovereign, all the citizens owe him a faithful obedience. He 
rect8^owe*to ^^^ neither govern the state, nor perform what the nation ex- 
a sovereign, pccts from him, if he be not punctually obeyed. Subjects 
then have no right, in doubtful cases, to examine the wisdom 
or justice of their sovereign's commands ; this examination 
belongs to the prince : his subjects ought to suppose (if there 
\)e a possibility of supposing it) that all his orders are just and 
salutary : he alone is accountable for the evil that may result 
from them. 
i 64. In Nevertheless this ought not to be entirely a blind obedi- 
vhat cases eucc. No engagement can oblige, or even authorize, a man 
*^8Uthim *^ violate the law of nature. AJl authors who have any re- 
gard to conscience or decency agree that no one ought to 
obey such commands as are evidently contrary to that sacred 
law. Those governors of places who bravely refused to exe- 
cute the barbarous orders of Charles IX. on the memorable 
day of St. Bartholomew, have been universally praised ; and 
the court did not dare to punish them, at least openly. 
"Sire," said the brave Orte, governor of Bayonne, in his 
letter, "I have communicated your majesty's command to 
your faithful inhabitants and warriors in the garrison ; and I 
have found there only good citizens and brave soldiers, but 
not a single executioner: wherefore both they and I most 
humbly entreat your majesty to be pleased to employ our 
hands and our lives in things that are possible, however 
hazardous they may be ; and we will exert ourselves to the 
last drop of our blood in the execution of them."* The Count 
[ 22 ] de Tende, Charny, and others, replied to those who brought 
them the orders of the court, " that they had too great a re- 
spect for the king, to believe that such barbarous orders came 
from him." 

It is more difficult to determine in what cases a subject may 
not only refuse to obey, but even resist a sovereign, and op- 
pose his violence by force. When a sovereign does injury to 
any one, he acts without any real authority ; but wc ought 
not thence to conclude hastily that the subject may resist 
him. The nature of sovereignty, and the welfare of the state, 
will not permit citizens to oppose a prince whenever his com- 
mands appear to them unjust or prejudicial. This would be 
falling back into the state of nature, and rendering govern- 
ment impossible. A subject ought patiently to suffer from 
the prince doubtful wrongs, and wrongs that are supportable ; 
the former, because whoever has submitted to the decision of 
a judge, is no longer capable of deciding his own pretensions ; 
and as to those that are supportable, they ought to be sacri- 

* Mezer&y's History of Franee> toI. ii. p. 1107. 
88 . 



OF THE SOVEREIGN. 22 



I. 
CHAP. rv. 



ficed to the peace and safety of the state, on account of the "^^k 
great advantages obtained by living m society. It is pre- 
sumed, as matter of course, that every citizen has tacitly en- 
gaged to observe this moderation ; because, without it, society 
could not exist. But when the injuries are manifest and 
atrocious, — ^when a prince, without any apparent reason, 
attempts to deprive us of life, or of those things the loss of 
which would render life irksome, who can dispute our right to 
resist him ? Self-preservation is not only a natural right, 
but an obligation imposed by nature, and no man can entirely 
and absolutely renounce it. And though he might give it up, 
can he be considered as having done it by his political en- 
gagements, since he entered into society only to establish his 
own safety upon a more solid basis ? The welfare of society 
does not require such a sacrifice; and, as Barbeyrac well 
observes in his notes on Grotius, "If the public interest re- 
quires that those who obey should suffer some inconvenience, 
it is no less for the public interest that those who command 
should be afraid of driving their patience to the utmost ex- 
tremity."* The prince who violates all laws, who no longer 
observes any measures, and who would in his transports of 
fury take away the life of an innocent person, divests himself 
of his character, and is no longer to be considered in any 
other light than that of an unjust and outrageous enemy, 
against whom his people are allowed to defend themselves. 
The person of the sovereign is sacred and inviolable : but he 
who, after having lost all the sentiments of a sovereign, divests 
himself even of the appearances and exterior conduct of a 
monarch, degrades himself: he no longer retains the sacred 
character of a sovereign, and cannot retain the prerogatives 
attached to that exalted rank. However, if this prince is not 
a monster, — if he is furious only against us in particular, and [ 28 ] 
from the effects of a sudden transport or a violent passion, 
and is supportable to the rest of the nation, the respect we 
ought to pay to the tranquillity of the state is such, and the 
respect due to sovereign majesty so powerful, that we are 
strictly obliged to seek every other means of preservation, 
rather than to put his person in danger. Every one knows 
the example set by David : he fled, — ^he kept himself con- 
cealed, to secure himself from Saul's fury, and more than 
once spared the life of his persecutor. When the reason of 
Charles VI. of France was suddenly disordered by a fatal 
accident, he in his fury killed several of those who surrounded 
him : none of them thought of securing his own life at the ex- 
pense of that of the king ; they only endeavoured to disarm 
and secure him. They did their duty like men of honour and 
faithful subjects, in exposing their lives to save that of this 
unfortunate monarch : such a sacrifice is due to the state and 

* De Jnre BoUi A Pacia, lib. i. cap. iv. J 11, n. 2. 

12 H 2 89 



23 



BOOK I. 
CHAP. IV. 



§55. Of 

ministors. 



07 STATES ELBOTIVB, 

to sovereign majesty : furious from the derangement of his 
- faculties, Charles was not guilty : he might recover his health, 
and again become a good king. 

What has been said is sufficient for the intention of this 
work : the reader may see these questions treated more at 
large in many books that are well known. We shall conclude 
this subject with an important observation. A sovereign is 
undoubtedly allowed to employ ministers to case him in the 
painful offices of government ; but he ought never to surren- 
der his authority to them. When a nation chooses a con- 
ductor, it is not with a view that he should deliver up his 
charge into other hands. Ministers ought only to be instru- 
ments in the hands of the prince ; he ought constantly to 
direct them, and continually endeavour to know whether they 
act according to his intentions. If the imbecility of age, or 
any infirmity, render him incapable of governing, a regent 
ought to be nominated, according to the laws of the state : 
but when once the sovereign is capable of holding the reins, 
let him insist on being served, but never suffer himself to be 
superseded. The last kings of France of the first race sur- 
rendered the government and authority to the mayors of the 
palace : thus becoming mere phantoms, they justly lost the 
title and honours of a dignity of which they had abandoned 
the functions. The nation has every thing to gain in crown- 
ing an all-powerful minister, for he will improve that soil as 
his own inheritance, which he plundered whilst he only reaped 
precarious advantages from it. 



CHAP. V. 



CHAP. V. OF STATES ELECTIVE, SUCCESSIVE OR HEREDITARY, AND OF 
THOSE CALLED PATRIMONIAL. 



J6«. Of 

elective 

states. 



[24] 



WE have seen in the preceding chapter, that it originally 
belongs to a nation to confer the supreme authority, and to 
choose the person by whom it is to be governed. If it confers 
the sovereignty on him for his own person only, reserving to 
itself the right of choosing a successor after the sovereign's 
death, the state is elective. As soon as the prince is elected 
according to the laws, he enters into the possession of all tho 
prerogatives which those laws annex to his dignity. 
i 57. Whe- It has been debated, whether elective kings and princes are 
her eiecUve real sovereigns. But he who lays any stress on this circum- 
stance must have only a very confused idea of sovereignty. 
The manner in which a prince obtains his dignity has nothing 
to do with determining its nature. We must consider, first, 
whether the nation itself forms an independent society (see 

90 



kings are 
real sove- 
reigns. 



SUCCESSIVB, OR HSREDITART, ETC. 24 

chap. 1), and secondly, what is the extent of the power it has book l 
intrusted to the prince. Whenever the chief of an independ- ^°^'*' ^' 
ent state really represents his nation, he ought to be consid- 
ered as a true sovereign (§ 40), even though his authority should 
be limited in several respects. 

When a nation would avoid the troubles whichi seldom fail i 58. Of 
to accompany the election of a sovereign, it makes its choice s'*^®®""^® 
for a long succession of years, by establishing the right of JJ^^^^ 
Bttccession^ or by rendering the crown hereditary in a family, states. 
according to the order and rules that appear most agreeable The origin 
to that nation. The name of an Hereditary State or Kingdom ^ *^® "*^* 
is given to that where the successor is appointed by the same l^^^^ 
law that regulates the successions of individuals. The Sue- 
eemve Kingdom is that where a person succeeds according to a 
particular fundamental law of the state. Thus the lineal suc- 
cession, and of males alone, is established in France. 

The right of succession is not always the primitive esta- ; 69. Other 
blishment of a nation ; it may have been introduced by the orig^s of 
concession of another sovereign, and even by usurpation. But *^ "*^*' 
when it is supported by long possession, the people are con- 
sidered as consenting to it ; and this tacit consent renders it 
lawful, though the source be vicious. It rests then on the 
foundation we have already pointed out — a foundation that 
alone is lawful and incapable of being shaken, and to which 
we must ever revert. 

The same right, according to Grotius and the generality 1 60. othet 
of writers, may be derived from other sources," as conquest, ^**-^®^ 
or the right of a proprietor, who, being master of a country, amount to 
should invite inhabitants to settle there, and give them lands, the same 
on condition of their acknowledging him and his heirs for thing, 
their sovereigns. But as it is absurd to suppose that a society 
of men can place themselves in subjection otherwise than with 
a view to their own safety and welfare, and still more that 
they can bind their posterity on any other footing, it ulti- 
mately amounts to the same thing ; and it must still be said 
that the succession is established by the express will, or the 
tacit consent of the nation, for the welfare and safety of the 
state. 

It thus remains an undeniable truth, that in all cases the j 61. A na- 
succession is established or received only with a view to the *ion may 
public welfare and the general safety. If it happened then ^^/^f*^^ 
that the order established in this respect became destructive gucoession. 
to the state, the nation would certainly have a right to change 
it by a new law. Salu8 populi auprema lex, the safety of [ 25 ] 
the people is the supreme law ; and this law is agreeable to 
the strictest justice, the people having united in society only 
with a view to their safety and greater advantage.* 

* Nimiram, quod publico salaUs bus exigentibas, immntari qnld obstat? 
causa et commnni oonsensn statutnm Mariaita, ibid. o. iv. 
eaty eadem multitadinia Yolnntato, re- 91 



25 OP STATES ELECTIVE, 

BOOK I. This pretended proprietary right attributed to princes is a 
^"•^^' ^' chimera, produced by an abuse which its supporters would 
fain make of the laws respecting private inheritances. The 
state neither is nor can be a patrimony, since the end of 
patrimony is the advantage of the possessor, whereas the 
prince is established only for the advantage of the state.* 
The consequence is evident : if a nation plainly perceives that 
the heir of her prince w^ould be a pernicious sovereign, she has 
a right to exclude him. 

The authors, whom we oppose, grant this right to a des- 
potic prince, while they refuse it to nations. This is because 
they consider such a prince as a real proprietor of the empire, 
and will not acknowledge that the care of their own safety, 
and the right to govern themselves, still essentially belong to 
the society, although they have intrusted them, even without 
any express reserve, to a monarch and his heirs. In their 
opinion, the kingdom is the inheritance of the prince, in the 
same manner as his field and his flocks — a maxim injurious 
to human nature, and which they would not have dared to 
advance in an enlightened age, if it had not the support of 
an authority which too often proves stronger than reason and 
justice. 
i 62. Of re- A nation may, for the same reason, oblige one branch who 
nunciations. removes to another country, to renounce all claim to the 
crown, as a daughter who marries a foreign prince. These 
renunciations, required or approved by the state, are per- 
fectly valid, since they are equivalent to a law that such 
persons and their posterity should be excluded from the 
throne. Thus the laws of England have for ever rejected 
every Roman Catholic. " Thus a law of Russia, made at 
[ 26 ] the beginning of the reign of Elizabeth, most wisely excludes 
from the possession of the crown every heir possessed of 



* When Philip II. resigned the been nations vrho governed thoinsclves 
Netherlands to his daughter Isabella by popular assemblies, or bj a Ecnuto : 
Clara Eugenia, it wois said (according there have been others who intrusted 
to the testimony of Grotius) that it was the general management of their con- 
setting a dangerous precedent^ for a cems to princes. For it is not to be 
prince to treat free citizens as his pro- imagined, it was added, that legitimate 
perty, and barter them away like do- sovereignties have originated from any 
mestic slaves; that, among barbari- other source than the cousent of the 
ans, indeed, the extraordinary practice people, who gave themselves all up to 
sometimes obtained of transferring go- a single person, or, for the sake of 
vernments by wiU or donation, because avoiding the tnmnlUs and discord of 
those people were incapable of discern- elections, to a whole family ; and those 
ing the difference between a prince to whom they thus committed them- 
and a master; but that those, whom selves were induced, by the proppect 
superior knowledge enabled to distin- of honourable pre-eminence alone, to 
guish between what is lawful and what accept a dignity by which they were 
is not, could plainly perceive that the bound to promote the general welfare 
administration of a state is the pro- of their fellow-citizens in preference to 
perty of the people (thence usuaUy de- their own private advantage. Grotius. 
nominated res-publica) ; and that, as in HisL of the Disturbances in the Ne- 
every period of the world there have thorlands, book ii. — Edit. A. d. 1797. 
92 



SUOCBSSIVE, OR HEREDITARY, ETC. 26 

another monarchy ; and thus the law of Portugal disqualifies book i. 
every foreigner who lays claim to the crown by right of blood."* SII^IlI'^ 

Some celebrated authors, in other respects very learned 
and judicious, have then deviated from the true principles in 
treating of renunciations. They have largely expatiated on 
the rights of children born or to be bom, of the transmission 
of those rights, &c. But they ought to have considered the 
succession less as a property of the reigning family, than as 
a law of the state. From this clear and incontestable prin- 
ciple, we easily deduce the whole doctrine of renunciations. 
Those required or approved by the state are valid and sacred : 
they are fundamental laws : those not authorized by the state 
can only be obligatory on the prince who made them. They 
cannot injure his posterity, and he himself may recede from 
them in case the state stands in need of him and gives him 
an invitation : for he owes his services to a people who had 
committed their safety to his care. For the same reason, 
the prince cannot lawfully resign at an unseasonable junc- 
ture, to the detriment of the state, and abandon in imminent 
danger a nation that had put itself under his care.f 

In ordinary cases, when the state may follow the established § 63. The 
rule without being exposed to very great and manifest danger^ order of sue- 
it is certain that every descendant ought to succeed when the ought^com- 
order of succession calls him to the throne, however great moniy to be 
may appear his incapacity to rule by himself. This is a con- kept. (23) 
sequence of the spirit of the law that established the succession : 
for the people had recourse to it only to prevent the troubles 
which would otherwise be almost inevitable at every change. 
Now little advances would have been made towards obtaining 
this end, if, at the death of a prince, the people were allowed 
to examine the capacity of his heir, before they acknowledged 
him for their sovereign. " What a door would this open for 
usurpers or malcontents ! It was to avoid these inconve- 
niences that the order of succession was established; and 
nothing more wise could have been done, since by this means 
no more is required than his being the king's son, and his 
being actually alive, which can admit of no dispute : but, on 
the other hand, there is no rule fixed to judge of the capacity 
or incapacity to reign.*' J Though the succession was not 
established for the particular advantage of the sovereign and 
his family, but for that of the state, the heir-apparent has 
nevertheless a right, to which justice requires that regard 
should be paid. His right is subordinate to that of the 
nation, and to the safety of the state ; but it ought to take 
place when the public welfare does not oppose it. (23) 

* spirit of Laws, book zxyL chap. i Memorial in behalf of Madame de 
xxuL, where may be seen very good po- Longaeville, conoeming the principality 
litical reasons for these regulations. of Neufchatel, in 1672. 

t See farther on. (23) See this doctrine iUnstratod in 1 

Bla. Com. 247-5.— C. 

93 



27 OF STAT£S ELECTIVE, 

BOOK I. These reasons have the greater weight, since the law or 
^°^'*' ^' the state may remedy the incapacity of the prince by nomi- 
? w. Of nating a regent^ as is practised in cases of minority. This 
wgento. regent is, during the whole time of his administration, invested 
with the royal authority; but he exercises it in the king's 
name. (24^ 
J 65. indi- The prmciplcs we have just established i ..-^pocting the suc- 
visibiuty of cessive or hereditary right, manifestly show that a prince 
tiM*"*^' has no right to divide lus state among his children. Every 
sovereignty, properly so called, is, in its own nature, one and 
indivisible, since those who have united in society cannot be 
separated in spite of themselves. Those partitions, so con- 
trary to the nature of sovereignty and the preservation of 
states, have been much in use ; but an end has been put to 
them, wherever the people, and princes themselves, have had 
a clear view of their greatest interest, and the foundation of 
their safety. 

But when a prince has united several diiferent nations 
under his authority, his empire is then properly an assem- 
blage of several societies subject to the same head; and there 
exists no natural objection to his dividing them among his 
children : he may distribute them, if there be neither law nor 
compact to the contrary, and if each of those nations consents 
to receive the sovereign he appoints for it. For this reason, 
France was divisible under the first two races.* But being 
entirely consolidated under the third, it has since been con- 
sidered as a single kingdom ; it has become indivisible, and a 
fundamental law has declared it so. That law, wisely pro- 
viding for the preservation and splendour of the kingdom, 
irrevocably unites to the crown all the acquisitions of its kings. 
§ 66. Who The same principles will also furnish us with the solution 
aretode- of a Celebrated question. When the right of succession 
cidedu- becomcs uncertain in a successive or hereditary state, and 
epecting the *^^ ^^ t^TQ^ competitors lay claim to the crown, it is asked, 
aucccsaion " Who shall be the judge of their pretensions?" Some 
to a 8OT0- learned men, resting on the opinion that sovereigns are sub- 
reignty. jg^^ to no Other judge but God, have maintained that the 
competitors for the crown, while their right remains uncer- 
tain, ouffht either to come to an amicable compromise, enter 
into articles among themselves, choose arbitrators, have re- 
course even to the drawing of lots, or, finally, determine the 
dispute by arms ; and that the subjects cannot in any manner 
decide the question. One might be astonished that celebrated 
authors should have maintained such a doctrine. But since, 
even in speculative philosophv, there is nothing so absurd as 
not to have been advanced oy one or other of the philoso- 

(24) AnUf p. 26, n. — C. approbation and consent of the reapeet- 

* Bat it ia to be obaenred that thoae ive atatea. 
partitions were not made without the 
9i 



SUCCESSIVE, OR HEREDITARY, ETC. 28 

phcrs,* what can be expected from the human mind, when ^^^ ^ 
seduced by interest or fear ? What ! in a question that con- ^°^'*' ^' 
cems none so much as the nation — that relates to a power 
established only with a view to the happiness of the people- 
in a quarrel that is to decide for ever Aeir dearest interests, 
and their very safety — are they to stand by as unconcerned 
spectators ? Are they to allow strangers, or the blind decision 
of arms, to appoint them a master, as a flock of sheep are to 
wait till it be determined whether they are to be delivered 
up to the butcher, or restored to the care of their shepherd ? 

But, say they, the nation has divested itself of all juris- 
diction, by giving itself up to a sovereign ; it has submitted to 
the reigning family ; it has given to those who are descended 
from that family a right which nobody can take from them ; 
it has established them its superiors, and can no longer judge 
them. Verv well ! But does it not belong to that same 
nation to acknowledge the person to whom its duty binds it, 
and prevent its being delivered up to another ? And since 
it has established the law of succession, who is more capable 
or has a better right to identify the individual whom the 
fundamental law had in view, and has pointed out as the suc- 
cessor? We may affirm, then, without hesitation, that the 
decision of this grand controversy belongs to the nation, and 
to the nation alone. Even if the competitors have agreed 
among themselves, or have chosen arbitrators, the nation is 
not obliged to submit to their regulations, unless it has con- 
sented to the transaction or compromise — ^princes not acknow- 
ledged, and whose right is uncertain, not being in any manner 
able to dispose of its obedience. The nation acknowledges 
no superior judge in an affair that relates to its most sacred 
duties and most precious rights. 

Grotius and Puffendorf differ in reality but little from our 
opinion ; but would not have the decision of the people or 
state called a juridical sentence {judicium jurisdictionis). 
Well ! be it so : we shall not dispute about words. However, 
there is something more in the case than a mere examination 
of the competitors' rights, in order to submit to him who has 
the best. All the disputes that arise in society are to be 
judged and decided by the public authority. As soon as the 
right of succession is found uncertain, the sovereign authority 
returns for a time to the body of the state, which is to exer- 
cise it, either by itself or by it representatives, till the true 
sovereign be known. " The contest on this right suspending 
the functions in the person of the sovereign, the authority 
naturally returns to the subjects, not for them to retain it, but 
to prove on which of the competitors it lawfully devolves, and 
then to commit it to his hands. It would not be difficult to 



* Kedeo quomodo nihil tarn absurde philosophoram. CicorOi do DiWnat 
diei potiesty qaod non dicatur ab aliquo lib. ii. 

9b 



28 OF STATES ELECTIVE^ 

BOOK I. support, by an infinite number of examples, a truth so evi- 
^°^^- ^'' dent by the light of reason : it is sufficient to remember that 
the states of France, after the death of Charles the Fair, 
terminated the famous dispute between Philip de Valois and 
[ 29 ] the king of England (Edward III.), and that those states, 
though subject to him in whose favour they granted the de- 
cision, were nevertheless the judges of the dispute."* 

Guicciardini, book zii., also shows that it was the states 
of Arragon that decided the succession to that kingdom, in 
favour of Ferdinand, grandfather of Ferdinand the husband 
of Isabella, queen of Castile, in preference to the other re- 
lations of Martin, king of Arragon, who asserted that the 
kingdom belonged to them.f 

In the kingdom of Jerusalem also, it was the states that 
decided the disputes of those who made pretensions to it ; as 
is proved by several examples in the foreign political history.J 
The states of the principality of Neufchatel have often, in 
the form of a juridical sentence, pronounced on the succes- 
sion to the sovereignty. In the year 1707, they decided be- 
tween a great number of competitors, and their decision in 
favour of the king of Prussia was acknowledged by all Europe 
in the treaty of Utrecht. 
? 07. That The better to secure the succession in a certain and inva- 
tho right to riable order, it is at present an established rule in all Christian 
tho succes- states (Portugal excepted), that no descendant of the sovereign 
not°to"de- ^^^ succccd to the crown, unless he be the issue of a marriage 
pond on the that is couformablc to the laws of the country. As the nation 
judgment has established the succession, to the nation alone belongs the 
of a foreign power of acknowledging those who are capable of succeeding ; 
^^^^^' and consequently, on its judgment and laws alone must de- 
pend the validity of the marriage of its sovereigns, and the 
legitimacy of their birth. 

If education had not the power of familiarizing the human 
mind to the greatest absurdities, is there any man of sense 
who would not be struck with astonishment to see so many 
nations suffer the legitimacy and right of their princes to de- 
pend on a foreign power ? The court of Rome has invented 
an infinite number of obstructions and cases of invalidity in 
marriages, and at the same time arrogates to itself the right 
of judging of their validity, and of removing the obstruc- 
tions ; so that a prince of its communion cannot in certain 
cases be so much his own master as to contract a •: I'-riage 
necessary to the safety of the state. Jane, the only clai;ghter 
of Henry IV,, king of Castile, found this true by cruel expe- 
rience, bome rebels published abroad that she owed her birth 
to Bert rand de la Cueva, the king's favourite; and notwith- 



^ Answer in behalf of Madame de ^ ^^^ the same memorial, which 

Longaevillo to a memorial in behalf of quotes P. Lnbbe's Royal Abridgment, 

Madame de Nemours. f Ibid. page 501, dc. 
96 



SUCCESSIVE, OE HEREDITAEY, ETC. 



29 



standing the declarations and last will of that prince, who book l 
explicitly and invariably acknowledged Jane for his daughter, ^°^' ^' 
and nominated her his heiress, they called to the crown Isa- 
bella, Henry's sister, and wife to Ferdinand, heir of Arragon. 
The grandees of Jane's party had provided her a powerful [ 80 ] 
resource, by negotiating a marriage between her and Alphon- 
Bus, king of Portugal : but as that prince was Jane's uncle, 
it was necessary to obtain a dispensation from the pope ; and 
Pius IL, who was in the interest of Ferdinand and Isabella, 
refused to grant the dispensation, though such alliances were 
then very common. These difficulties cooled the ardour of 
the Portuguese monarch, and abated the zeal of the faithful 
Castilians. Every thing succeeded with Isabella, and the un- 
fortunate Jane took the veil, in order to secure, by this heroic 
sacrifice, the peace of Castile.* 

If the prince proceeds and marries, notwithstanding the 
pope's refusal, he exposes his dominions to the most fatal 
troubles. What would have become of England, if the Re- 
formation had not been happily establishec^ when the pope 
presumed to declare Queen Elizabeth illegitimate, and incapa^ 
ble of wearing the crown ? 

A great emperor, Lewis of Bavaria, boldly asserted the 
rights of his crown in this respect. In the diplomatic code 
of the law of nations by Leibnitz, we findf two acts, in "which 
that prince condemns, as an invasion of the imperial autho- 
rity, the doctrine that attributes to any other power but his 
own, the right of granting dispensations, and of jucjging of 
the validity of marriages, in the places under his jurisdictipn : 
but he was neither well supported in his lifetime, nor imitated 
by his successors. 

Finally, there are states whose sovereign may choose his ? <J8- Of 
successor, and even transfer the crown to another during his ■***^' ®*^^ 

I _, ^ patrimonial. 

* I take Una historioal passage from says he, nobis ilte debitam et conces- 

M. Da Port de Tertro's Conspiracies, sam. 

To him I refer; for I have not the ori- P. 156. Forma dlflpensadonls snper 

ginal historians by me. However, I do affinitate consangninitatis inter Lu^ 

not enter into the qnestion relating to doTicam marchionem Brandenburg et 

the birth of Jane : this would here be Margaretham duclssam EarinthisB, neo 

of no use. The princess had not been non legitimatio liberomm procreando. 

declared a bastard according to the rum, faetes per dom. LadoTic. IV. Eom. 

laws; the king acknowledged her for imper. 

hia daughter ; and besides, whether she It is only human law, says the empe- 

was or was not legitimate, the incon- ror, that hinders these marriages intra 

Tonienoes resulting from the pope's re- gradus affinitatis sanguinis, pnesertim 

ftisal stiU remained the same with re- intra fhttres et sorores. De oi^us legis 

spect to her and the king of PortugaL — prnceptis dispensare solummodo pertinet 

Nofte» edit 1797. ad anctoritatem imperatoris sen princi- 

f P. 154. Forma dirortii matrimo- pis Bomanorum. He then opposes and 

niaJis inter Johannem filium regis Bo- oondemns the opinion of those who dare 

hnaim et Margaretham ducissam Ea- to say that these dispensations depend 

rinthiss. This divorce is given by the on ecclesiastics. Botii this act and the 

emperor oa account of the impoten- former are dated in the year 1341. 

cy of the husband, per anctoritatem. Note, edit A. D. 1797. 

13 I 97 



30 OF STATES SLBCTIYEy 

BOOK I. life : these are commonly called patrimonial kingdoms or 
^^^^' ^' states : but let us reject so unjust and so improper an epithet, 
which can only serve to inspire some sovereigns with ideas 
very opposite to those they ought to entertain. We have 
shown (§ 61) that a state cannot be a patrimony. But it may 
happen that a nation, either through unbounded confidence in 
its prince, or for some other reason, has intrusted him with 
the care of appointing his successor, and even consented to 
[ 31 ] receive, if he thinks proper, another sovereign from his hands. 
Thus we see that Peter I., emperor of Russia, nominated his 
wife to succeed him, though he had children. 
§ 69. Every But when a prince chooses his successor, or when he cedes 
true Bove- the crown to another, — ^properly speaking, he only noQiinates, 
reignty u ]^j virtue of the power with which he is, either expressly or 
oniaieii e. j^^ ^^j^ consent, intrusted — ^he only nominates, I say, the 
person who is to govern the state after him. This neither is 
nor can be an aUenation, properly so called. Every true 
sovereignty is, in its own nature, unalienable. We shall be 
easily convinced of this, if we pay attention to the origin and 
end of political society, and of the supreme authority. A 
nation becomes incorporated into a society, to labour for the 
common welfare as it shall think proper, and to live accord- 
ing to its own laws. With this view it establishes a public 
authority. If it intrusts that authority to a prince, even 
with the power of transferring it to other hands, this can 
never take place without the express and unanimous consent 
of the citizens, with the right of really alienating or subject- 
ing the state to another body politic : for the individuals who 
have formed this society, entered into it in order to live in 
an independent state, and not under a foreign yoke. Let 
not any other source of this right be alleged in objection to 
our argument, as conquest, for instance ; for we have already 
shown (§ 60) that these different sources ultimately revert to 
the true principles on which all just governments are founded. 
While the victor does not treat his conquest according to 
those principles, the state of war still in some measure sub- 
sists : but the moment he places it in a civil state, his rights 
are proportioned by the principles of that state. 

I know that many authors, and particularly Grotius,* give 
long enumerations of the alienations of sovereignties. But 
the examples often prove only the abuse of power, not the 
right. And besides, the people consented to the alienation, 
either willingly or by force. What could the inhabitants of 
Pergamu% Bithynia, and Gyrene do, when their kings gave 
them, by their last wills, to the Roman people ? S'othing 
remainea for them, but to submit with a good grace to so 
powerful a legatee. To furnish an example capable of serving 
as an authority, they should have produced an instance of a 

« GrotiuB D« juM BeUi et Paeis, Ub. i. cap. ilL { 12. 
98 



SUCCESSIYB, OR HBBEDITART, BTC. 31 

people reeisting a similar bequest of their Bovereign, aad book i. 
whose resistance had been generally condemned as nnjust and ^^' ^' 
rebellious. Had Peter I., who nominated hi« wife to succeed 
him, attempted to subject his empire to the grand seignior, or 
to some other neighbouring power, can we imagine that the 
Russians would have suffered it, or that their resistance would 
have passed for a revolt ? We do not find in Europe any 
great state that is reputed alienable. If some petty princi- 
palities have been considered as such, it is because they 
were not true sovereignties. They were fiefs of the empire, 
enjoying a greater or less degree of liberty : their masters L ^^ J 
made a traffic of the rights they possessed over those terri* 
tories : J>ut they could not withc&aw them from a dependence 
on the empire. 

Let us conclude then, that, as the nation alone has a right 
to subject itself to a foreign power, the right of really alien- 
ating the state can never belong to the sovereign, unless it 
be expressly given him by the entire body of the people.* 
Neither are we to presume that he possesses a right to nomi- 
nate his successor or surrender the sceptre to other hands, — ^a 
right which must be founded on an express consent, on a law 
of the state, or on long custom, justified by the tacit consent 
of the people. 

If the power of nominating his successor is intrusted to the § 70. Duty 
sovereign, he ought to have no other view in his choice but ©^ » P™»c« 
the advantage and safety of the state. He himself was ^s-^^^^^^®"^ 
tablished only for this end(§ 39); the liberty of transferring noJSlSate 
his power to another could then be granted to him only with his iqc- 
the same view. It would be absurd to consider it as a prero- c®"or- 
gative useful to the prince, and which he may turn to his own 
private advantage. Peter the Great proposed -only the welfare 
of the empire when he left the crown to his wife. He knew 
that heroine to be the most capable person to follow his views, 
and perfect the sreat things he had begun, and therefore 
preferred her to his son, who was still too young. If we often 
found on the throne such elevated minds as Peter's, a nation 
could not adopt a wiser plan, in order to ensure to itself a ^ood 
government, than to intrust the prince, by a fundamental law, 
with the power of appointing his successor. This would be a 
much more certain method ttian the order of birth. The Ro- 
man emperors, who had no male children, appointed a succes- 
sor by sidoption. To this custom Rome was indebted for a 

* The pope, oppo«ing the attempt them." On whieh ooeuion the French 
made upon England by Lonifl, the son nobles nnanimonsly exclaimed, that they 
of Philip AngustoB, and alleging, as his would, to their last breath, maintain 
pretext, that John had rendered himself this irath, <' that no prince can, of his 
a rassal of the holy see, received for own private will, give away his king- 
answer, among other arguments, " that dom, or render it ^bntary, and thus 
a sovereign had no right to dispose of enslave the nobility/' Telly's Hist of 
his states without the consent of his France, vol. iii. p. 491. 
barons, who were bound to defend 

99 



82 PRINCIPAL OBJECTS OF 

series of sovereigns unequalled in history, — ^Nerva, Trajan, 
. Adrian, Antoninus, Marcus Aurelius. What princes ! Does 
the right of birth often place such on the throne ? 
} 71. He We may go still farther, and boldly assert, that, as the 
most have safety of the whole nation is deeply interested in so import- 
at least a ^^f^ ^ transaction, the consent and ratification of the people 
ficaUonf ' ^' ^***® ^ necessary to give it full and entire effect, — at least 
their tacit consent and ratification. If an emperor of Russia 
thought proper to nominate for his successor a person noto- 
riously unworthy of the crown, it is not at all probable that 
vast empire would blindly submit to so pernicious an appoint- 
[ 33 ] ment. And who shall presume to blame a nation for refus- 
ing to run headlong to ruin out of respect to the last orders 
of its prince ? As soon as the people submit to the sovereign 
appointed to rule over them, they tacitly ratify the choice 
made by the last prince ; and the new monarch enters into 
all the rights of his predecessor. 



CHAP. VI. 

CHAP. ▼!. PRINCIPAL OBJECTS OF A GOOD GOVERNMENT; AND FIRST 
TO PROVIDE FOR THE NECESSITIES OF THE NATION. 

i 72. The AFTER these observations on the constitution of the state, 

object of «o-let US now proceed to the principal objects of a good govern- 

*»^«*y i^V**" ment. We have seen above (§§ 41 and 42) that the prince, 

ties of* the" ^^ ^^^ being invested with the sovereign authority, is charged 

soyereign. with the duties of the nation in relation to government. In 

treating of the principal objects of a wise administration, we 

at once show the duties of a nation towards itself, and those 

of the sovereign towards his people. 

A wise conductor of the state will find in the objects of 
civil society the general rule and indication of his duties. 
The society is established with the view of procuring, to those 
who are its members, the necessaries, conveniences, and even 
pleasures of life, and, in general, every thing necessary to 
their happiness,— of enabling each individual peaceably to 
enjoy his own property, and to obtain justice with safety and 
certainty, — and, finally, of defending themselves in a body 
He ought to against all external violence (§ 15). The nation, or its con- 
procure ductor, should first apply to the business of providing for all 
plenty. the wauts of the people, and producing a happt/ plenty of all 
the necessaries of life, with its conveniences and innnocent 
and laudable enjoyments. (25) As an easy life without lux- 

(25) See the general doctrine, that the at large, 2 Malthus, 433 ; 2 Smith, W. N. 

happiness of a people depends on the 200 ; 2 Palej, Mor. Phil. 345 ; Sir J. 

quantity of productive labour and em- Child on Trade, 167-8 ; and Tucker on 

ployment, and the consequent return Trade, part ii. sections 4, 7, 8 ; 1 Chit- 

of produce and remuneration, discussed ty's Commercial Law, 1, Ac. — C. 
100 



A GOOD GOVERNMENT. 38 



CHAP. 



Qiy contribntes to the happiness of men, it likewise enables book i. 
them to labour with greater safety and success after their""'" " 
own perfection, which is their grand and principal duty, and 
one of the ends they ought to have in view when they unite 
in society. 

To succeed in procuring this abundance of every thing, it j 73. To 
is necessary to take care that there be a sufficient number of take care 
able workmen in every useful or necessary profession. (26) |**' ^^® 
An attentive application on the part of government, wise re- ^^^^ ^um- 
gulations, and assistance properly granted, will produce this ber of work- 
effect, without using constraint, which is always fatal to in- men. 
dustry. 

Those workmen that are useful ought to be retained in ? 74. To 
the state ; to succeed in retaining them, the public authority p*"®.^®"'.*^® 
has certainly a right to use contraint, if necessary. (27) ®™*^^**'^ 
Every citizen owes his personal services to his country ; and a that are 
mechanic, in particular, who has been reared, educated, andusefuL 
instructed in its bosom, cannot lawfully leave it, and carry to 
a foreign land that industry which he acquired at home, un- 
less his country has no occasion for him, (27) or he cannot 
there obtain the just fruit of his labour and abilities. Em- [ 34 ] 
ployment must then be procured for him ; and, if, while able 
to obtain a decent livelihood in his own country, he would 
without reason abandon it, the state has a right to detain 
him. (28) But a very moderate use ought to be made of this 
right, and only in important or necessary cases. Liberty 
is the soul of abilities and industry : frequently a mechanic 
or an artist, after having long travelled abroad, is attracted 
home to his native soil by a natural affection, and returns 
more expert and better qualified to render his country useful 
services. If certain extraordinary cases be excepted, it is best 
in this affieiir to practise the mild methods of protection, en- 
couragement, &c., and to leave the rest to that natural love 
felt by all men for the places of their birth. 

As to those emissaries who come into a country to entice j 75. Emk- 
away useful subjects, the sovereign has a right to punish them Bari«8 who 
severely, and has just cause of complaint against the power ^^^^^ *^®™ 
by whom they are employed. *^*^' 

In another place, we shall treat more particularly of the 
general question, whether a citizen be permitted to quit the 

(26) There were in England many this rule, 5 Geo. L 0. 27 ; 23 Geo. IL 
enactments enforcing this supposed 0. 13 ; 14 Geo. III. 0. 71 ; 4 Bia. Com. 
policy, and prohibiting various work- 160 ; but repealed by 5 Qoo. IV. e. 97. 
men from leaving the kingdom. See 5 — C. 

Geo. I. e. 27 ; 23 Geo. II. c. 13 ; 14 (28) See also the power of prerent- 

Oeo. in. c. 71 ; 4 Bla. Com. 160. But^ ing a subject, or even a foreigner, going 

according to more modem policy, these abroad. Flack v. HolMf 1 Jao. k Wal]^. 

enactments were repealed by 5 Goo. IV. Rep. 405, and post, J 222, and Book II. 

c «7.— C. 2 108.--C. 

(27) See the English acts enforcing 

x2 101 



34 



OF THE CULTIVATION OP THE SOIL. 



BOOK I. 
CHAP. VI. 

J 76. La- 
boor and 
industry 
must be en- 
couraged. 



society of which he is a member. The particular reasons 
concerning useful workmen are sufficient here. 

The state ought to encourage labour, to animate indus- 
try, (29) to excite abilities, to propose honours, rewards, privi- 
leges, and so to order matters that every one may live by his 
industry. In this particular, England deserves to be held up 
as an example. The parliament incessantly attends to these 
important affairs, in which neither care nor expense is 
spared. (30) And do we not even see a society of excellent 
citizens formed with this view, and devoting considerable 
sums to this use ? Premiums are also distributed in Ireland 
to the mechanics who most distinguish themselves in their pro- 
fession. Can such a state fail of being powerful and happy? 



ifr. The 
utility of 
UUage. (31) 



J 78. Regu- 
lations ne- 
cessary in 
this respect. 



For the dis- 
tribution of 
land. 

[35] 



CHAP VII. 

OF THE CULTIVATION OF THE SOIL. (31) 

OF all the arts, tillage, or agriculture, is doubtless the most 
useful and necessary, as being the source whence the nation 
derives its subsistence. The cultivation of the soil causes it 
to produce an infinite increase; it forms the surest* resource 
and the most solid fund of riches and commerce, for a nation 
that enjoys a happy climate. 

This object then deserves the utmost attention of the go- 
vernment. The sovereign ought to neglect no means of ren- 
dering the land under his jurisdiction as well cultivated as 
possible. He ought not to allow either communities or pri- 
vate persons to acquire large tracts of land, and leave them 
uncultivated. Those rights of common, which deprive the pro- 
prietor of the free liberty of disposing of his land — ^which will 
not allow him to enclose and cultivate it in the most advan- 
tageous manner; those rights, I say, are inimical to the wel- 
fare of the state, and ought to be suppressed, or reduced to 
just bounds. Notwithstanding the introduction of private 
property among the citizens, the nation has still a right to 
take the most effectual measures to cause the aggregate soil 
of the country to produce the greatest and most advantageous 
revenue possible. (32) 



(29) Ante, § 72, note (25).— C. 

(80) How far the interference of the 
legislature is advisable, and when — see 
the authorities and arguments collected, 
1 Chittjr's Commercial Law, 4 to 7, and 
j>09tf J 98.— C. 

. (31) As to the subject of this chapter, 
see further authorities, Ghittjr's Com- 
mercial Law, Yol. i. chap. 1. — C. 

(32) In England there are few le- 
102 



gislativo enactments respecUng the enl 
tiration of the soil or employment of 
its produce, each individual being lefl 
to his own discretion; but to prevent 
the injurious sale of farming produce, 
thereby impoverishing the land, there is 
an express enactment enforcing public 
policy in that respect. See 56 Geo. m. 
0. 50, and its recitals. In France ther* 
are express provisions punishing indi- 



OF THE CULTIVATION OF THE BOIL. ^85 

The covemment ought carefully to avoid every thing ca- book t 
pable of discouraging the husbandman, or of diverting him ^^^^' ^^^ 
from the labours of apiculture. Those taxes — those excessive i^^- ^^ 
and ill-proportioned impositions, the burden of which falls ^.^J^^^ jj^, 
almost entirely on the cultivators — and the oppressions they bandmexu 
suffer froni the officers who levy them — deprive the unhappy 
peasant of the means of cultivating the earth, and depopulate 
the country. Spain is the most fertile and the worst culti- 
vated country in Europe. The church there possesses too 
much land ; and the contractors for the royal magazines, 
being authorized to purchase, at a low price, all the corn they 
find m the possession of a peasant, above what is necessary 
for the subsistence of himself and his family, so greatly dis- 
courage the husbandman, that he sows no more corn than is 
barely necessary for the support of his own household. 
Hence the frequent scarcity in a country capable of feeding 
its neighbours. 

Another abuse injurious to agriculture is the contempt J so. Hus- 
cast upon the husbandman. The tradesmen in cities — even ^"^^^y 
the most servile mechanics — ^the idle citizens — consider him ^^^^ j^ ^^ 
that cultivates the earth with a disdainful eye ; they humble houourabie 
and discourage him; they dare to despise a profession that light, 
feeds the human race — ^the natural employment of man. A 
little insignificant haberdasher, a tailor, places far beneath 
him the beloved employment of the first consuls and dictators 
of Rome ! China has wisely prevented this abuse : agricul- 
ture is there held in honour ; and to preserve this happy 
mode of thinking, the emperor himself, followed by his whole 
court, annually, on a solemn day, sets his hand to the plough, 
and sows a small piece of land. Hence China is the best 
cultivated country in the world ; it feeds an immense multi- 
tude of inhabitants who at first sight appear to the traveller 
too numerous for the space they occupy. 

The cultivation of the soil deserves the attention of the i 8i. The 
government, not only on account of the invaluable advantages c^^j^a^iion 
that flow from it, but from its being an obligation imposed by ^j^^^^^lj^ ' 
nature on mankind. The whole earth is destined to feed its obligation, 
inhabitants ; but this it would be incapable of doing if it were 
uncultivated. Every nation is then obliged by the law of 
nature to cultivate the land that has fallen to its share ; and 
it has no right to enlarge its boundaries, or have recourse to 
the assistance of other nations, but in proportion as the land 
in its possession is incapable of furnishing it with necessaries. 
Those nations ^such as the ancient Germans, and some modern [ 36 ] 
Tartars) who mhabit fertile countries, but disdain to culti- 
vate their lands, and choose rather to live by plunder, are 
wanting to themselves, are injurious to all their neighbours, 

Wdoals who suffer injorions weeds to oeedinglj ealntary if introdaced into 

^ed on Und to the ixgnry of their neigh- this country. — G. 

so/on, a regulation which would be ex- 103 



OF THE CULTIVATION OF THE SOIL. 



BOOK I. and deserve to be extirpated as savage and pernicious beasts. 



CHAP. vn. 



■ There are others, who, to avoid labour, choose to live only 
by hunting, and their flocks. This might, doubtless, be 
allowed in the first ages of the world, when the earth, without 
cultivation, produced more than was sufficient to feed its 
small number of inhabitants. But at present, when the hu- 
mfiXi race is so greatly multiplied, it could not subsist if all 
nations were disposea to live in that manner. Those who 
still pursue this idle mode of life, usurp more extensive terri- 
tories than, with a reasonable share of labour, they would 
have occasion for, and have, therefore, no reason to complain, 
if other nations, more industrious and too closely confined, 
come to take possession of a part of those lands. Thus, 
though the conquest of the civilized empires of Peru and 
Mexico was a notorious usurpation, the establishment of many 
colonies on the continent of North America might, on their 
confining themselves within just bounds, be extremely lawful. 
The people of those extensive tracts rather ranged through 
than inhabited them. 
} 82. Of The establishment of public granaries is an excellent re- 
pabUo gra- gulation for preventing scarcity. But great care should be 
'*"®"' taken to prevent their being managed with a mercantile 
spirit, and with views of profit. This would be establishing a 
monopoly, which would not be the less unlawful for its be- 
ing carried on by the magistrate. These granaries should 
be filled in times of the greatest plenty, and take oflf the 
com that would lie on the husbandman's hands, or be car- 
ried in too great quantities to foreign countries : they should 
be opened when corn is dear, and keep it at a reasonable 
price. If in a time of plenty they prevent that necessary 
commodity from easily falling to a very low price, this incon- 
venience is more than compensated by the relief they afibrd 
in times of dearth : or rather, it is no inconvenience at all ; 
for, when corn is sold extremely cheap, the manufacturer, 
in order to obtain a preference, is tempted to undersell his 
neighbours, by offering his goods at a price which he is after- 
wards obliged to raise (and this produces great disorders 
in commerce, by putting it out of its course) ; or he accus- 
toms himself to an easy life, which he cannot support in 
harder times. It would be of advantage to manufactures 
and to commerce to have the subsistence of workmen regu- 
larly kept at a moderate and nearly equal price. In short, 
public granaries keep in the state quantities of com that 
would be sent abroad at too cheap a rate, and must be pur- 
chased again, and brought back at a very great expense after 
a bad harvest, which is a real loss to the nation. These 
establishments, however, do not hinder the corn trade. If the 
country, one year with another, produces more than is sufficient 
for the support of her inhabitants, the superfluity will still be 
sent abroad ; but it will be sent at a higher and fairer price. 

104 



OF COMlfBROS. 87 



BOOK I. 
CHAP. Tin. 



CHAP. VHL [ 87 ] 

OF COMMERCE. (33) 

IT is commerce that enables individaals and whole nations j 33, q^ 
to procure those commodities which they stand in need of, home and 
but cannot find at home. Commerce is divided into home^^^^s^ 
sjid foreign trade. (34) The former is that carried on in the***^ 
state between the several inhabitants ; the latter is carried on 
with foreign nations. 

The home trade of a nation is of great use ; it furnishes all | $4. utmtj 
the citizens with the means of procuring whatever they want, of the home 
as either necessary, useful, or agreeable ; it causes a circu- ^*^^' 
lation of money, excites industry, animates labour, and, by 
affording subsistence to a great number of people, contributes 
to increase the population and power of the state. 

The same reasons show the use of foreign trade, which is ; 85. utmty 
moreover attended with these two advantages : — 1. By trad- of foreign 
mg with foreigners, a nation procures such things as neither ^*^^ 
nature nor art can furnish in the country it occupies. And 
secondly, if its foreign trade be properly directed, it increases 
the riches of the nation, and may become the source of wealth 
and plenty. Of this the example of the Carthaginians among 
the ancients, and that of the English and Dutch among the 
moderns, afford remarkable proofs. Carthage, by her riches, 
counter-balanced the fortune, courage, and greatness of Rome. 
Holland has amassed immense sums in her marshes ; a com- 
pany of her merchants possesses whole kingdoms in the East, 
and the governor of Batavia exercises command over the 
monarchs of India. To what a degree of power and glory 
has England arrived ! Formerly her warlike princes and in- 
habitants made glorious conquests, which they afterwards lost 
by those reverses of fortune so frequent in war ; at present, 
it is chiefly commerce that places in her hand the balance of 
Europe. 

Nations are obliged to cultivate the home trade, — ^first, |86. obu- 
because it is clearly demonstrated from the law of nature, «*^®"* *® 
that mankind ought mutually to assist each other, and, asJ^,^J^J^* 
far as in their power, contribute to the perfection and hap^ 
piness of their fellow-creatures : whence arises, after the in- 
troduction of private property, the obligation to resign to 
others, at a fair price, those things which they have occasion 
for, and which we do not d^ine for our own use. Secondly, 



(33) See the anthorities and doctrinea carrying trad^, formerly one of the prin- 
on Che adrantoge of oommerce and com- eipal sonrees of BritiBh wealth and 
meroial reg:alationfl, 1 Chitty's Commer- power. See anthoritiee, 1 Chitty'a Gom- 
dal Law, 1 to 106.— G. meroial Law, 7, S, Ac— C. 

(34) To these iu^ to be added the 

14 105 



8T 



OF COMMERCE. 



BOOK I. 

CHAP. vni. 



[38] 



§87. ObU- 
gation to 
carry on 
foreign 
trade. 



i 88. Foun- 
dation of 
the laws of 
commerce. 



Right of 
buying. 



society being established with the view that each may pro- 
cure whatever things are necessary to his own perfection and 
happiness — and a home trade being the means of obtaining 
them — the obligations to carry on and improve this trade are 
derived from the very compact on which the society was 
formed. Finally, being advantageous to the nation, it is a 
duty the people owe to themselves, to make this commerce 
flourish. 

For the same reason, drawn from the welfare of the state, 
and also to procure for the citizens every thing they want, a 
nation is obliged to promote and carry on a foreign trade. 
Of all the modern states, England is most distinguished in 
this respect. The parliament have their eyes constantly 
fixed on this important object ; they effectually protect the 
navigation of the merchants, and, by considerable bounties, 
favour the exportation of superfluous commodities and mer- 
chandises. In a very sensible production,* may be seen the 
valuable advantages that kingdom has derived from such 
judicious regulations. 

Let us now see what are the laws of nature and the rights 
of nations in respect to the commerce they carry on with 
each other. Men are obliged mutually to assist each other 
as much as possible, and to contribute to the perfection and 
happiness of their fellow-creatures (Prelim. § 10) ; (S5) whence 
it follows, as we have said above (§ 86), that, after tne intro- 
duction of private property, it became a duty to sell to each 
other, at a fair price, what the possessor himself has no occa- 
sion for, and what is necessary to others ; because, since that 
introduction of private property, no one can, by any other 
means, procure the different things that may be necessary or 
useful to him, and calculated to render life pleasant and agree- 
able. Now, since right springs from obligation (Prelim. U), 
the obligation which we have just established gives every man 
the right of procuring the things he wants, by purchasing 
them at a reasonable price from those who have themselves 
no occasion for them. (36) 

We have also seen (Prelim. § 5) that men could not free 
themselves from the authority of the laws of nature by uniting 
in civil society, and that the whole nation remains equally 



* Remarks on the Advantages and 
DiBadvantages of France and Great 
Britain with respect to Commerce. 

(35) See also s. 13, and Id. note, 
ante. — C. 

(36) The moral obligation of a na- 
tion, in time of peace, to permit com- 
mercial intercourse with other states, 
and to aUow other states to buy her 
surplus produce, or to seU or exchange 
their own surplus produce, is illus- 
trated in Mr. Pitt's celebrated speech 

106 



in concluding the commercial treaty 
with France in 1786, Ac, 2 Smith's W. 
of N., 226 to 252; Tucker's Pamphlet 
Cui Bono, and 1 Chitty's Commercial 
Law, 73 to 79. This seems to be con- 
sidered by the ablest writers on the law 
of nations, to be a moral duty but of 
imper/ecl obligation, so that in truth 
each state has a right, when so disposed, 
to decline any commercial interoonne 
with other states. Id. ibid et svpra.— • 
C. 



OF OOHMEROE. 88 

subject to those laws in its national capacity ; so that the book z. 
natural and necessary law of nations is no other than the law ^°^^- ^'"- 
of nature properly applied to nations or sovereign states 
(Prelim. § 6) : from all which it follows, that a nation has a 
right to procure, at an equitable price, whatever articles it 
wants, by purchasing them of other nations who have no oc- 
casion for them. This is the foundation of the right of com- 
merce between different nations, and, in particular, of the 
right of buying. (36) 

We cannot apply the same reasoning to the right of selling j 89. Right 
such things as we want to part with. Every man and every ^^ seiUng. 
nation being perfectly at liberty to buy a thing that is to be 
sold, or not to buy it, and to buy it of one rather than of 
another — ^the law of nature gives to no person whatsoever any 
kind of right to sell what belongs to him to another who does 
not wish to buy it ; neither has any nation the right of selling 
her commodities or merchandise to a people who are unwilling 
to have them. [ 39 ] 

Every state has consequently a right to prohibit the en- § 90. Pro- 
trance oi foreign merchandisee ; and the nations that arei^Wtionof 
affected by such prohibition have no right to complain of it, ^?"^5li™*' 
as if they had been rcfased an office of humanity. (37) Their ® "* ^^ 
complaints would be ridiculous, since their only ground of 
complaint would be, that a profit is refused to them by that 
nation, who does not choose they should make it at her ex- 
pense. It is, however, true, that if a nation was very certain 
that the prohibition of her merchandises was not founded on 
any reason drawn from the welfare of the state that prohibited 
them, she would have cause to consider this conduct as a 
mark of ill-will shown in this instance, and to complain of it 
on that footing. But it would be very difficult for the ex- 
cluded nation to judge with certainty that the state had no 
solid or apparent reason for making such a prohibition. 

By the manner in which we have shown a nation's right to ; 91. Ka- 
buy of another what it wants, it is easy to see that this right t^w of the 
is not one of those called perfecty and that are accompanied ![|^^' **^ 
with a right to use constraint. Let us now distinctly explain "^"*^' 
* the nature of a right which may give room for disputes of a 
Tery serious nature. You have a right to buy of others such 
things as you want, and of which they themselves have no 
need ; you make application to me : I am not obliged to sell 
t^em to you, if I myself have any occasion for them. In 
"virtue of the natural liberty which belongs to all men, it is I 
who am to judge whether I have occasion for them myself, or 

(36) S«e note (36) preceding page. porting prohibited goods, or permitted 

(37) When such a prohibition has goods without paying imposed daties, 
heen established, any violation of it in Bird t. AppUtoUf 8 Torm Rep * 562 ; 
general subjects the ship and goods to Wigmore t. Reed, 5 Term Rep. 599 ; 
aoixnre and confiscation, as in case of Holman y. JbAfwon, Cowp. 344. — C. 
smaggling, whether by exporting or im- { Chwroh r.^ffubbari, 2 Cranch^ 187. } 

107 



89 OF COMMERCE. 

BOOK I. can conveniently sell them to you ; and yon have no right to 
CHAP. Tin. (Jetermine whether I judge well, or ill, because you have no 
authority over me. If I, improperly, and without any good 
reason, refude to sell you at a fair price what you want, I 
oflFend against my duty : you may complain of this, but you 
must submit to it : and you cannot attempt to force me, with- 
out violating my natural right, and doing me an injury. The 
right of buying the things we want is then only an imperfect 
right, like that of a poor man to receive alms of the rich man ; 
if the latter refuses to bestow it, the poor man may justly 
complain : but he has no right to take it by force. 

If it be asked, what a nation has a right to do in case of 
extreme necessity, — this question will be answered in its pro- 
per place in the following book. Chap. IX. 
; 92. EFory Sincc then a nation cannot have a natural right to sell her 
nation is to merchandises to another that is unwilling to purchase them, 
fiffTr iii'^ ®^^^^ ®^® ^^ ^^'y ^^ imperfect right to buy what she wants 
engage in ^^ Others, sinco it belongs only to these last to judge whether 
oommerce. it be proper for them to sell or not ; and finally, since com- 
merce consists in mutually buying and selling all sorts of 
commodities, it is evident that it depends on the will of any 
nation to carry on commerce with another, or to let it alone. 
If she be willing to allow this to one, it depends on the nation 
to permit it under such conditions as she shall think proper. 
For in permitting another nation to trade with her, she grants 
[ 40 ] that other a right ; and every one is at liberty to affix what 
conditions he pleases to a right which he grants of his own 
accord. (37) 
} 93. How Men and sovereign states may, by their promises, enter 
a nation ac- into a perfect obligation with respect to each other, in things 
fectri htto ^^^^^ nature has imposed only an imperfect obligation. A 
a^foreign nation, not having naturally a perfect right to carry on a 
trade. Commerce with another, may procure it by an agreement or 
treaty. This right is then acquired only by treaties, and re- 
lates to that branch of the law of nations termed conventional 
(Prelim. § 24). The treaty that gives the right of commerce, 
is the measure and rule of that right. 
J 94. Of Uie ^ simple permission to carry on commerce with a nation 

simple per- ^ *^ •^ 

(37) Witii respect to commercial nations; and they are not even per- 

intercourse with the eoloniet of a parent mitted to land in the country, or to 

state of Europe, all the European nations enter with their yessels within cannon 

which have formed setUements abroad shot of the shoce, except only in cases 

have so appropriated the trade of those of urgent necessity. This has now be- 

settiements to Uiemselyos, either in ex- come generally the understanding and 

elunveltf permitting their own subjects law of nations as regards colonies ; and 

to partake of it, or in granting a mo- the ships, Ao. violating the rule are 

nopoly to trading companies, that the liable to seizure. Marten's Law of 

colonies themselves cannot legally carry Nations, 150 to 152 ; Bird v. Appleton, 

on hardly any direct trade with other 8 Term Rep. 562 ; 1 Chitty's Commercial 

powers; oonsequentiy the oommerce in Law, 79, 211 to 244, 470, 631. — C. 
those possessions is not free to foreign 
108 



mission of 



OF OOMMERGB. 40 

gives no perfect right to that commerce. For if I merely book i. 
and simply permit you to do any thing, I do not give you ^'^''' ^'" ' 
any right to do it afterwards in spite of me : — ^you may make 
use of my condescension as long as it lasts ; but nothing pre- 
vents me from changing my will. As then every nation has 
a right to choose whether she will or will not trade with an- 
other, and on what conditions she is willing to do it (§ 92), if 
one nation has for a time permitted another to come and 
trade in the country, she is at liberty, whenever she thinks 
proper, to prohibit that commerce — ^to restrain it — ^to subject 
it to certain regulations ; and the people who before carried 
it on cannot complain of injustice. 

Let us only observe, that nations, as well as individuals, 
are obliged to trade together for the common benefit of the 
human race, because mankind stand in need of each other's 
assistance (Prelim. §§ 10, 11, and Book I. § 88) : still, however, 
each nation remains at liberty to consider, in particular caseSj 
whether it be convenient for her to encourage or permit com- 
merce ; and as our duty to ourselves is paramount to our duty 
to others, if one nation finds herself in such circumstances 
that she thinks foreign commerce dangerous to the state, she 
may renounce and prohibit it. This the Chinese have done 
for a long time together. But, again, it is qiily for very 
serious and important reasons that her duty to herself should 
dictate such a reserve ; otherwise, she could not refuse to 
comply with the general duties of humanity. 

We have seen what are the rights that nations derive from i »5. Whe- 
nature with regard to commerce, and how they may acquire ^^ ^ J^^ 
others by treaties: let us now examine whether they canjngtoooin- 
found any on long custom. To determine this question in a meroe are 
solid manner, it is necessary first to observe, that there are object to 
rights which consist in a simple power: they are called i^S^^^g^ 
Latin, jura merce facultatis, rights of mere ability. They 
are such in their own nature that he who possesses them may 
use them or not, as he thinks proper — ^being absolutely free 
from all restraint in this respect ; so that the actions that 
relate to the exercise of these rights are acts of mere free 
will, that may be done or not done, according to pleasure. It 
is manifest that rights of this kind cannot be lost by pre- [ 41 ] 
scription, on account of their not being used, since prescription 
is only founded on consent legitimately presumed ; and that, 
if I possess a right which is of such a nature that I may or 
may not use it, as I think proper, without any person having 
a right to prescribe to me on the subject, it cannot be pre- 
sumed, from my having long forborne to use it, that I there- 
fore intend tor abandon it. This right is then imprescriptible, 
mJess I have been fofbidden or hindered from making use 

(38) See txiHher, Orotias, 158; Poffendorf, B. 4, chap. 5, 8. 10, p. 168; 1 Chit. 
Com. Law, 80, 81.— C. 

K 109 



41 OF GOICMERCS. 

BOOK I. of it, aad have obeyed with sufficient marks of consent. Let 
CHAP. Till. ^ sappose, for instance, that I am entirely at liberty to grind 
my com at any mill I please, and that during a very con- 
siderable time, a century if you please, I have made use of 
the same mill : as I have done in this respect what I thought 
proper, it is not to be presumed, from this long-continued use 
of the same mill, that I meant to deprive myself of the right 
of grinding at any other ; and, consequently, my right cannot 
be lost by prescription. But now suppose, that, on my re- 
solving to make use of another mill, the owner of the former 
opposes it, and announces to me a prohibition ; if I obey his 
prohibition without necessity, and without opposition, though 
I have it in my power to. defend myself, and know, my right, 
this right is lost, because my conduct affords grounds for a 
legitimate presumption that 1 chose to abandon it. — Let 110 
apply these principles. — Since it depends on the will of each 
nation to carry on commerce with another, or not to carry it 
on, and to regulate the manner in which it chooses to carry it 
on(§ 92), the right of commerce is evidently a right of mere 
ability {jiia merce facuitatts)j a simple power, and consequently 
is imprescriptible. Thus, although two nations have treated 
together, without interruption, during a century, this long 
usage does not give any right to either of them ; nor is the 
one obliged on this account to suffer the other to cojne and 
sell its merchandises, or to buy others : — ^they both preserve 
the double right of prohibiting the entrance of foreign mer- 
chandise, and of selling their own wherever people are willing 
to buy them. Although the English have from time imme- 
morial been accustom^ to get wine from Portugal, they are 
not on that account obliged to continue the trade, and have 
not lost the liberty of purchasing their wines elsewhere. (40) 
Although they have, in the same manner, been long accustomea 
to sell their cloth in that kingdom, they have, nevertheless, 
a right to transfer that trade to any other country : and the 
Portuguese, on their part, are not obliged by this long custom, 
either to sell their wines to the English, or to purchase their 
cloths. If a nation desires any right of commerce which shall 
no longer depend on the will of another, she must acquire it 
by treaty. (40) 
2 96. impre- What has been just said may be applied to the rights of 
8«riptibiiity commerce acquired by treaties. If a nation has by this method 
f ^ '^ed' pi^ocured the liberty of selling certain merchandises to another, 
^^!^. ^^ she does not lose ner right, though a great number of years 

(40) The perpetaal obligation to oensnred by some as eyidently fedvMi. 

pnrohaae Port winee firom Portugal in tageous to Portugal and disadrantage- 

exohange for Britiflh woollen oloths was ons to Oreat Britain. 2 Smith, W. N. 

established by the oelebratod treaty of 838 to 341; Tnoker on Trade, 366; 

Methtton, a. d. 1708 ( so called beoaose and 1 Chitty's Commoroial Law, 619. 

oonoluded by Sir P. Methuon), with — C. 
Portugal; a treaty which has been 
110 



OF COMMBROS. 42 

are Buffered to elapse without its being used ; because this book i. 
right is a simple power, ju% meroe faciLUatis, which she is at ^^^^' ^™' . 
liberty to use or not, whenever she pleases. 

Certain circumstances, however, may render a different 
decision necessary, because they imply a change in the nature 
of the right in question. For instance, if it appears evident, 
that the nation granting this right granted it only with a view 
of procuring a species of merchandise of which she stands 4n 
need, and if the nation which obtained the right of selling 
neglects to furnish those merchandises, and another offers to 
bring them regularly, on condition of having an exclusive 
privilege, — ^it appears certain that the privilege may be 
granted to the latter. Thus the nation that had the right of 
selling would lose it, because she had not fulfilled the tacit 
condition. 

Commerce is a common benefit to a nation ; and all her i 97. Of 
members have an equal right to it. Monopoly ^ therefore, in ™®?2^-*^ 
general, is contrary to the rights of the citizens. However, ^nipaaieB* 
this rule has its exceptions, suggested even by the interest of with ezcin- 
the nation : and a wise government may, in certain cases, Bive privi- 
justly establish monopolies. There are commercial enter- ^®^"" (*^) 
prises that cannot, be carried on without an energy that 



(41) 6e^ the advantages and dis- 
advantages resalting from commercial 
'•ompaniea and foreign monopolies, and 
upon colonisation in general, 1 Chit- 
17*8 Commeroial Law, 631 to 689; and 
■ee aoMe sensible observations on the 
Impolioj of Exclusive Companies, 
Evans on Statutes, Glass III. title In- 
suntnce, p. 231. Dr. Adam Smith, in 
his Wealth of Nations, book iv. c. 7, 
p. 379, Ac and Dean Tacker, in his 
Bssay on Trade, 67 to 71 (but see Id. 
40, 41), admit, that, to induce specu- 
lating and enterprising individuals to 
embark their capitals in expensive un- 
dertakings, probably generally bene- 
ficial in the result, but which could 
not be pursued by single individuals, 
it may be expedient originally to a£ford 
them a monopoly ; but that, after they 
have acquired a liberal profit, the trade 
ought to be thrown open. Again, 
when a country becomes too densely 
populated, and many subjects are out 
of employ and restless, then there 
may be another reason for enoonrag- 
ing the creation of foreign companies. 
A celebrated diplomatist, and an acute 
observer of b«i&an nature (M. Talloy- 
land), has justly said, that the art of 
ptUUng men i%to their proper places is, 
perhaps, the first science of govem- 
mest; bat that of finding the proper 



place for the dieoonienud is assuredly 
the mosi dijfficult; and the presenting 
to their imagination in a distant coun- 
try, perspective views, on which their 
thoughts and desires may fix them- 
selves, is one of the solutions of this 
difficulty. In the development of the 
motives which determined the estab- 
lishment of the ancient eolonxea we 
easily remark, that, at the very time 
they were indispensable, they were 
voluntary; that they were presented 
by the governments as an aUurement, 
not as a punishment. Bodies politic 
ought to reserve to themselves the 
means of placing to advantage, at a 
distance from their immediate seat^ 
that superabundance of citizens who 
from time to time threaten their tran- 
quillity. Thus, with new view of life, 
and the content springing from the 
full employment of the aepiring tnind 
of man, and under the influence of re- 
newed hope, the bad, the idle, and the 
turbulent may be rendered nsefU mem- 
bers of society. Our coUmiAe, then, pre- 
sent such a field for the promotion of 
human happiness, snch a scope for the 
noblest purposes of philanthropy, that 
we cannot be led to think their inte- 
rests wiU be overlooked by a wise legis- 
latora or gOTemment. — 0. 

N 111 



42 OF COMMEROE. 

BOOK I. requires considerable funds, which surpass the ability of in- 
CHAP. vHi. (jividuals. There are others that would soon become ruinous, 
were they not conducted with great prudence, with one regu- 
lar spirit, and according to well-supported maxims and rules. 
These branches of trade cannot be indiscriminately carried 
on by individuals : companies are therefore formed, under the 
authority of government ; and these companies cannot subsist 
without an exclusive privilege. It is therefore advantageous 
to the nation to grant them : hence have arisen, in different 
countries, those powerful companies that carry on commerce 
with the East. When the subjects of the United Provinces 
established themselves in the Indies on the ruin of their ene- 
mies the Portuguese, individual merchants would not have 
dared to think of such an arduous enterprise ; and the state 
itself, wholly taken up with the defence of its liberty against 
the Spaniards, had not the means of attempting it. 

It is also certain beyond all doubt, that, whenever any in- 
dividual offers, on condition of obtaining an exclusive privilege, 
to establish a particular branch of commerce or manufacture 
which the nation has not the means of carrying on, the sove- 
reign may grant him such privilege. 

But whenever any branch of commerce may be left open 
to the whole nation, without producing any inconvenience or 
being less advantageous to the state, a restriction of that 
commerce to a few privileged individuals is a violation of the 
rights of all the other citizens. And even when such a com- 
merce requires considerable expenses to maintain forts, men 
of war, &c., this being a national affair, the state may defray 
those expenses, and, as an encouragement to industry, leave 
the profits of the trade to the merchants. This is sometimes 
[ 43 ] done in England. 
? 98. Ba- The conductor of a nation ought to take particular care to 
lance of encouragc the commerce that is advantageous to his people, 
auoniion of *^^ *^ supprcss or lay restraints upon that which is to their 
goYomment disadvantage. (42) Gold and silver having become the com- 

in this . ; . -_ - . 

respect. (42) This is * queetumahU policy. 125, 201, 204; 3 Id. 183 j Malthus, 

It has been laid down by some of the 196; 2 Paley, Mor. Phil. 400, 402; 

most eminent writers on political econo- 3 Hume, Hist. 403 ; Sir J. Child on 

my, that every active interference of Trade, 2d part, 46, 81, 86, 132, 154 to 

the legislatnre with its subjects, by 164; and Buchanan's Observations on 

prohibiting or restraining any partiou- Smith's W. of N. 2d ed. vol. 4, page 

lar branch of honest labour, or by en- 156, 157 ; Introduc. 3 Lord Sheffield's 

couraging any particular branch at the Strictures on Navigation System, 3 

expense of the others, whether in agri- Adolph. 163, and see ante, chap. 6, 

culture or commeree, has uniformly re- and 1 Chitty's Commercial Law, 4 

tarded the advances of public opulence, to 7. 

and that the sound policy of a legislator But as regards the encouragement 
is not to impose restrictions or regula- or discouragement of any particular 
tions upon domestic industry, but ra- branch of trade, there is another mo- 
ther to prevent them from being im- tive for interference which powerfully 
posed by the contrivance or folly of influences, viz. the increage of rtvtnvt^ 
others. See 2 Smithi W. N. 118, for whenever the luxury or other wish 
112 



PUBLIO WATS. 43 

mon standard of the value of all the articles of commerce, the ^^^ '• 

trade that brings into the state a greater quantity of these ' - 

metals than it carries out, is an advantageous trade ; and, on 
the contrary, that is a ruinous one, which causes more gold 
and silver to be sent abroad, than it brings home. This is 
what is called the balance of trade. The ability of those who 
have the direction of it, consists in making that balance turn 
in favour of the nation. 

Of all the measures that a wise government may take with i o^* ^- 
this view, we shall only touch here on impart duties. When |^5* **'**^®'' 
the conductors of a state, without absolutely forcing trade, ^ ^ 
are nevertheless desirous of diverting it into other channels, 
they lay such duties on the merchandises they would discou- 
rage as will prevent their consumption. Thus, French wines 
are charged with very high duties in England, while the 
duties on those of rortugal are very moderate, — because 
England sells few of her productions to France, while she sells 
large quantities to Portugal. There is nothing in this con- 
duct that is not very wise and extremely just ; and France 
has no reason to complain of it — every nation having an un- 
doubted right to make what conditions she thinks proper, 
with respect to receiving foreign merchandises, and being even 
at liberty to refuse taking them at all. 



Chap. ix. 

OF THE CARE OF THE PUBLIC WAYS OF COMMUNICATION, ceAP. ix. 
AND THE RIGHT OF TOLL. 

THE Utility of highways, bridges, canals, and, in a word, i lOO. uti- 
of all safe and commodious ways of communication, cannot ^»*y ^^ ^»8i»- 
bc doubted. They facilitate the trade between one place aJ^d^^-JV^ 
another, and render the conveyance of merchandise less ex- ' 
pensive, as well as more certain and easy. The merchants 
are enabled to sell at a better price, and to obtain the pre- 
ference ; an attraction is held out to foreigners, whose mer- 
chandises are carried through the country, and diffuse wealth 
in all the places through which they pass. France and Hol- 
land feel the happy consequences of this from daily expe- 
rience. (44) 



of tho people introduces a foreign, or and export duties, bounties and draw- 

oren a domestio article to greater con- backs, which, since Yattel wrote, have 

smaption, a moderate charge upon the become eztensiye branches of law, 

same, though in a degree restrictive upon highly important to be studied. See an 

the consumption, wiU in general be a attempt of the editor to arrange them, 

proper tax. Ibid.— C. in 1 Chitty's Commercial Law, Index, 

(43) This is a very slight allusion to tiUes Import and Export,— G. 
the very important regulation of import (44) Bat although, since Vattel 
15 k2 113 



*43 PUBLIC WATS. 

BOOK I. One of the principal things that ought to employ the at- 
CHAP. IX. tention of the government with respect to the Welfare of the 



§ 101. Duty public in general, and of trade in particular, must then relate 
m nrin^hi *^ *^^ highways, canals, &c., in which nothing ought to be 
respect ^^i^^glected to render them safe and commodious. Francois 
one of those states where this duty to the public is discharged 
with the greatest attention and magnificence. Numerous 
[ 44 ] patroles everywhere watch over the safety of travellers : mag- 
nificent roads, bridges, and canals, facilitate the communica- 
tion between one province and another : — Lewis XIV. joined 
the two seas by a work worthy of the Romans. 
J 102. Its The whole nation ought, doubtless, to contribute to such 
rights in this jjggf^jj undertakings. When therefore the laying out and 
respect repairing of highways, bridges, and canals, woidd be too 
great a burden on the ordinary revenues of the state, the 
government may oblige the people to labour at them, or to 
contribute to the expense. (45) The peasants, in some of the 
'provinces of France, have been heard to murmur at the labours 
imposed upon them for the construction of roads: but ex- 
perience had no sooner made them sensible of their true 
interest, than they blessed the authors of the undertaking. 
i 1^3- Foun- The construction and preservation of all these works being 
tijfri Uof ^^^^'^^^^ ^^^^ great expense, the nation may very justly 
toU.7l6) ^ oblige all those to contribute to them, who receive advantage 
from their use : this is the legitimate origin of the right of 
toll. It is just that a traveller, and especially a merchant, 
who receives advantage from a bridge, a canal, or a road, in 
his own passage, and in the more commodious conveyance of 

wrote, France greatly advanoed in the ply of proper food in return for his 

improTement of her roadsj yet England labour. — C. 

has surpassed all other nations in the (46) As to the right to toll, Ac, see 

facilities of internal intercourse by new Grotius, b. IL chap. 2, { 14, p. 164 ; 

canals, railways, and other improve- Paffendorff, book ilL chap. 3, { 6, p. 

ments sanctioned by the legislature. 29, 30; 1 Bla. Com. 287; 1 Chitlbfa 

With respect to which, see the enact- Commercial Law, 103 to 106; 2 Id. 

ments and decisions, 2 Ghitty's Commer- 139, 140. It has been observed, that 

oial Law, 127 to 141.— C. of all the taxes with which the inbabi- 

(45) This position of a government's tants of this country are burdened, 

right to oblige the people to labour on there is perhaps none so odious aa the 

the roads as thus stated, would startle turnpike duty. On the oontinent no 

an Englithman, In England there is such interruption in travelling is ez> 

no such direct power. The 34 Geo. 3, perienced, and tolls have been al^ollshed 

c. 74, s. 4, it is true, requires each oc- on the northern side of the metropolis, 

oupior to send his carts and horses, and London. Lord Byron, in his eulogy 

labourers, to work on the roads; but upon English roads, humorously ob- 

then, if he negleet to do so, he is sub- serves — 

ject only to a moderate penalty, just -wh.tad.i,fMftiifhifHttiniipitow.d. 

sufficient to enable the surveyor to hire so nooeh, « kvci, neh a node or tiaviaf 

the like assistance elsewhere? and as Ti»eMtb,-K.r«tb,«,i.»ib.ta«d 

, . ^ ^ Air eu Mconplmh with bU wid* wingi wftTiaf. 

to «en, even a pauper is subject to no H«iwdibe«aitinPhM»oii%u™,ui.|od 

penalty for refusing to work, excepting Had toM bb mm toMiirfy bk «▼!>« 

thiU, if b. do ,0, he wiU not then b. ^V^liTTCi^lSr:"""*"^ 
entitled to parochial relief. If he work, Cmi. i. n.'-c. 

ho is entitled to pay in money, or snp- 
114 



PUBUC WAYS. 44 

his merchandise, should help to defray the expense of these book i. 
useful establishments, by a moderate contribution: and if the -■ ^°^^- "• 
state thinks proper to exempt the citizens from paying it, she 
is under no obligation to gratify strangers in this particular. 

But a law so just in its origin frequently degenerates into jioi. Abuse 
great abuses. There are countries where no care is taken of <^>« "«>»*• 
of the highways, and where nevertheless considerable tolls ^ ' 
are exacted. A lord of a manor, who happens to possess a 
stripe of land terminating on a river, there establishes a toll, 
though he is not at a farthing's expense in keeping up the 
navigation of the river, and rendering it convenient. This 
is a manifest extortion, and an infringement of the natural 
rights of mankind. For the division of lands, and their be- 
coming private property, could never deprive any man of the 
right of passage, when not the least injury is done to the 

Eerson tlurough whose territory he passes. Every man in- 
erits this right from nature, and cannot justly be forced to 
purchase it. (47^ 

But the arhttrary or cugtomary law of nations at present 
tolerates this abuse, while it is not carried to such an excess 
as to destroy commerce. People do not, however, submit 
without difficulty, except in the case of those tolls which are 
established by ancient usage : and the imposition of new ones 
18 often a source of disputes. The Swiss formerly made war 
on the Dukes of Milan, on account of some oppressions of 
this nature. This right of tolls is also further abused, when 
the passenger is obliged to contribute too much, and what 
bears no proportion to the expense of preserving these public 
passages. (48) 

At present, to avoid all difficulty and oppression, nations 
settle these points by treaties. 

(47) This positioii leqnirM ezplana- 1 fiorr. 292. In the abaence of cneh 

tiMi Mid qiudiileatioii. Aa reepeotfl a onatom or preacription, no right to ap- 

pablio nayigable riTer, erery part of proaoh a river over prirate gronnds 

the mavigahU atream muat ever remain eziats. Parthericke v. MfuoHf 2 Chitty'a 

free and open from its oommnnioation Rep. 658 ; Wyatt t. Thompson, 1 Esp. 

with 'the aea to ita extreme navigable Rep. 252. { Che^ y. Manown, 3 Watta, 

point; but the abaolate right to ap- Rep. 219; Cooper y. JShniih, 9 Serg. A 

proaoh it on each aide, can only be Rawle,26.} So, if a private indlYidnal 

by public and general waya. Conae- make and repair a bridge over a river, 

qnenUy, if an individoal have land ad- he may inaiat upon any person oaing 

joining a river, he may reaaonably it paying him a toU, as in the inatance 

refuse permission to any person to go of Putaey and Fulham bridge. In 

over it to approach the river, and de- these eases the demand of an ezorbi- 

mand any sum he thinks fit for the tant toU may be illiberal, but is no 

permission, unices there be a public more illegal than a nation's refusing 

way over it Kor have the public to sell its superfluous produce, or to 

any right at oouamon law to tow on admit free passage through its country, 

the banks of an ancient navigable The right to pass at a moderate toll 

river; BaU t. Herbert, 8 Term Rep. is a moral but imperfeet right, ante, 

263; though it may exist by custom J91.— €. 

or prescription. Pierce v. FoMconbergef (48) See n. 47, ante. 

115 



45 OP UOKEY AKD EXCHA17GE. 



BOOK I. 
CHAP. X. 



CHAP. X. 

OF MONEY AND EXCHANGE. (49) 

§ 105. Bs- IN the first ftges, after the introduction of private property, 
tabiishment people exchanged their superfluous commodities and effects 
of money, j.^^ thosc they Wanted. Afterwards gold and silver became 
the common standard of the value of all things : and to pre- 
vent the people from being cheated, the mode was introduced 
of stamping pieces of gold and silver in the name of the state, 
with the figure of the prince, or some other impression, as the 
seal and pledge of their value. This institution is of great 
use and infinite convenience : it is easy to see how much it 
facilitates commerce. — ^Nations or sovereigns cannot therefore 
bestow too much attention on an affair of such importance. 
i 106. Duty The impression on the coin becoming the seal of its stand- 
of the nation j^j^^j and Weight, a moment's reflection will convince us that 
wiSi'mpect ^^^ coinage of money ought not to be left indiscriminately 
to the coin, free to every individual ; for, by that means, frauds would 
become too common — ^the coin would soon lose the public 
confidence ; and this would destroy a most useful institution. 
Hence money is coined by the authority and in the name of 
the state or prince, who are its surety ; they ought, therefore, 
to have a quantity of it coined sufficient to answer the neces- 
sities of the country, and to take care that it be good, that is 
to say, that its intrinsic value bear a just proportion to its 
extrinsic or numerary value. 

It is true, that, in a pressing necessity, the state would have 
a right to order the citizens to receive the coin at a price 
superior to its real value : but as foreigners will not receive 
it at that price, the nation gains nothing by this proceeding ; 
it is only a temporary palliative for the evil, without effecting 
a radical cure. This excess of value, added in an arbitrary 
manner to the coin, is a real debt which the sovereign con- 
tracts with individuals : and, in strict justice, this crisis of 
affairs being over, that money ought to be called in at the 
expense of the state, and paid for in other specie, according to 
the natural standard : otherwise, this kind of burden, laid on 
in the hour of necessity, would fall solely on those who re- 
ceived this arbitrary money in payment, which would be unjust. 
Besides, experience has shown that such a resource is destruc- 
tive to trade, by destroying the confidence both of foreigners 
and citizens — raising in proportion the price of every thing — 

(49) The modern law of nations, and Id. 84 to 120 ; 1 Chltty's Commercial 

the manicipal law of England^ aa to Law, 583; 2 Id. 170 to 187, and statates 

coin, bullion, and money, will be found and deoisions there colleeted. — C. 
coUected in 1 Bla. Com. 276 to 280; 4 

lie 



OF MONBT AND EXCHANGE. 



46 



BOOK I. 
CHAP. X. 



and inducing every one to lock np or send abroad the good 

old specie ; whereby a temporary stop is put to the circulation - 

of money. So that it is the duty of every nation and of every 

sovereign to abstain, as much as possible, from so dangerous 

an experiment, and rather to have recourse to extraordinary [ 46 ] 

taxes and contributions to support the pressing exigencies of 

the state.* 

Since the state is surety for the goodness of the money j 107. Their 
and its currency, the public authority alone has the right of rights in thu 
coining it. Those who counterfeit it, violate the rights of respect 
the sovereign, whether they make it of the same standard 
and value or not. These are called false-coiners, and their 
crime is justly considered as one of the most heinous nature. 
For if they coin base money, they rob both the public and 
the prince ; and if they coin good, they usurp the preroga- 
tive of the sovereign. They will never be inclined to coin 
good money unless there be a profit on the coinage : and in 
this case they rob the state of a profit which exclusively be- 



♦ In Boisard's Treatise on Coin, we 
find the following observations : " It is 
worthy of remark, that, when oar kings 
debased the coin, they kept the circum- 
stance a secret from the people : — wit- 
ness the ordinance of Philip de Valois 
in 1350, by which he ordered Tournois 
JhubUs to be coined 2d, b^gr. fine, 
which was, in fact^ a debasement of 
the coin. In that ordinance, address- 
ing the officers of the mint, he says — 
* Upon the oath by which you are bound 
to the king, keep this affair as secret as 
yon possibly can, that neither the bank- 
ers nor others may, by your means, ac- 
quire any knowledge of it; for if, through 
you, it comes to be known, you shall be 
punished for the offence in such man- 
ner as shall serve as an example to 
others.'" — The same author quotes 
other similar ordinances of the same 
king, and one issued by the Dauphin, 
who governed the kingdom as regent 
daring the captivity of King John, dated 
Jane 27, 1360, by virtue of which the 
mint-masters, directing the officers en- 
gaged in the coinage to coin white 
Deniert Id. I2gr, fine, at the same time 
expressly command them to keep this 
order secret, and, " if any persons should 
make inquiry respecting their standard, 
to maintain that they were 2d, fine." 
Chap. xxix. 

The kings [of France] had recourse 
to this strange expedient in cases of 
urgent necessity; but they saw its in- 
jufitiee. — The same author, speaking 
of the debasement of coin, or the va- 



rious modes of reducing its intrinsic 
value, says — ''These expedients are 
but rarely resorted to, because the/ give 
occasion to the exportation or melting 
down of the good specie, and to the in- 
troduction and circulation of foreign 
coin — praise the price of every thing — 
impoverish individuals — diminish the 
revenue, which is paid in specie of in- 
ferior value — and sometimes put a total 
stop to commerce. This truth has been 
so well understood in all ages, that 
those princes who had recourse to one 
or other of these modes of debasing the 
coin in difficult times, ceased to prac- 
tise it the moment the necessity ceased 
to exist." We have, on this subject, an 
ordinance of Philip the Fair, issued in 
May, 1205, which announces, that, 
''The king having reduced the coin 
both in fineness and weight, and ex- 
pecting to be obliged to make a further 
reduction In order to retrieve his affairs, 
— but knowing himself to be, in con- 
science, responsible for the injury 
caused to the state by such reduction, 
— ^pledges himself to the people of his 
kingdom, by solemn charter, that, as 
soon as his affairs are retrieved, he will 
restore the coin to its proper standard 
and value, at his own private cost and 
expense, and will himself bear all the 
loss and waste. And, in addition to this 
engagement^ Dame Joan, Queen of 
France and Navarre, pledges her reve- 
nues and dower for the same purpose." 
Note. edit. a. d. 1797. 



117 



46 



OP MONEY AND EXCHANQK. 



BOOK I. 
CHAP. X. 



longs to it. In both cases they do an injury to the soTe- 
reign ; for the public faith being surety for the money, the 
sovereign alone has a right to have it coined. For this rea- 
son the right of coining is placed among the prerogatives cf 
majeety^ and Bodinus relates,* that Sigismund Augustus, 
king of Poland, haying granted this privilege to the duke 
of rrussia, in the year 1^3, the states of the country passeil 
a decree in which it was asserted that the king could not 

Kkut that privilege, it bein^ inseparable from the crown, 
e same author observes, that, although many lords and 
bishops of France had formerly the privilege of coining mo- 
ney, it was still considered as coined by the king's authority : 
and the kings of France at last withdrew all those privileges, 
on account of their being often abused. 
J 108. How From the principles just laid down, it is easy to conclude, 
one nation that if one nation counterfeits the money of another, or if 
""* u!^^™ she allows and protects false-coiners who presume to do it, 
Se article ^^® ^^®^ ^^^^ nation an injury. But commonly criminals 
of coin. of this class find no protection anywhere — all princes being 

equally interested in exterminating them. (50) 
; 109. Of There is another custom more modern, and of no less use 
exchange, to Commerce than the establishment of coin, namely exchange^ 
and the laws Qj, the traflSc of bankers, by means of which a merchant re- 
meroT ^^^ immense sums from one end of the world to the other, 
at a very trifling expense, and, if he pleases, without risk. 
For the same reason that sovereigns are obliged to protect 
commerce, they are obliged to support this custom, by good 
laws, in which every merchant, whether citizen or foreigner, 
* may find security. In general, it is equally the interest and 
the duty of every nation to have wise and equitable commer- 
cial laws established in the country. 



* In hia Repuhltc, book i. chap. x. 

(50) This is a sonnd principle, which 
ought to be extended so as to dcnj ef- 
fect to any fraud upon a foreign nation 
or its subjects. But in England a nar- 
row and immoral policy prevails of not 
noticing frauds upon the revenue of a 
foreign state. Roach v. Edit, 6 Term 
Bep. 425; Boucher v. Laun-enet, R. T. 
Hardw. 198 ; Holman v. Johntonj Cowp. 
343; Jafnc9 v. Catherwood, 3 Dowl. & 
Ryl. 190. { CambioM'9 Ex. v. Maffcft 
AMxgnctM, 2 Wash. G. C. Rep. 99. } And 
so far has this narrow doctrine been 
carried, in disgrace of this country, that, 
in Smith V. Marconnay, 2 Peake's Rep. 



81, it was held, that the maker of 
paper in England, knowingly made by 
him for the purpose of forging assignata 
upon the same, to be exported to France 
in order to commit fraud» there on 
other persons, might recover damagaa 
for not accepting such paper pursuant 
to contract So a master of an English 
ship was even allowed to recover sal- 
vage for bringing home his captured 
vessel, by deceptively inducing the one. 
my to release the vessel on his giving a 
ransom bill, payment of which he took 
care to countermand in London. 2 Dod- 
son's R. 74. 



118 



A GOOD OOVBRNMBNT, BTC. 47 



BOOK I. 
CHAP. XL 



CHAP. XI. 

8SC0KD OBJBOT OF A GOOD GOYERNMENTy — TO PROCURE TfiB 
TRUE HAPPINESS OF THB NATION. 

LET US continue to laj open the principal objects of a good § no. A na- 
government. What we have said in the five preceding chap- ^^^ ®^«^* 
ters relates to the care of providing for the necessities of the^^^*^^^ 
people, and procuring plenty in the state : this is a point of happinou. 
necessity ; but it is not su£Scient for the happiness of a na- 
tion. Experience shows that a people may be unhappy in 
the midst of all earthly enjoyments^ and in the possession of 
the greatest riches. Whatever may enable mankind to enjoy 
a true and solid felicity, is a second object that deserves the 
most serious attention of the government. Happiness is the 
point where centre all those duties which individuals and na- 
tions owe to themselves ; and this is the great end of the law 
of nature. The desire of happiness is the powerful spring 
that puts man in motion : felicity is the end they all have in 
view, and it ought to be the grand object of the public will 
(Prelim. § 6). It is then the duty of those who form this 
public will, or of those who represent it — the rulers of the 
nation — to labour for the happiness of the people, to watch 
continually over it, and to promote it to the utmost of their 
power. 

To succeed in this, it is necessary to instruct the people to i m. in- 
seek felicity where it is to be found ; that is, in their own 8ti»cUon. 
perfection, — ^and to teach them the means of obtaining it. 
The sovereign cannot, then, take too much pains in instruct- r 48 1 
ing and enlightening his people, and in forming them to use- 
ful knowledge and wise discipline. Let us leave a hatred of 
the sciences to the despotic tyrants of the east: they are 
afraid of having their people instructed, because they choose 
to rule over slaves. But though they are obeyed with the 
most abject submission, they frequently experience the effects 
of disobedience and revolt. A just and wise prince feels no 
apprehensions from the light of knowledge : he knows that it 
is ever advantageous to a good government. If men of learn- 
ing know that liberty is the natural inheritance of mankind ; 
on the other hand they are more fully sensible than their 
neighbours, how necessary it is, for their own advantage, that 
this liberty should be subject to a lawful authority: — in- 
capable of being slaves, thev are faithful subjects. 

The first impressions made on the mind are of the utmost j 112. Edu- 
importance for the remainder of life. In the tender years c^^^io" of 
of infancy and youth^ the human mind and heart easily re- ^'^^^^' 
ceive the seeds of good or evil. Hence the education of 
youth is on« of the most important affairs that deserve the 

119 



48 SECOND OBJECT OP 

BOOK I. attention of the government. It ought not to be entirelv 
CHAP. XI. j^Q. ^^ fathers. The most certain way of forming good citi- 
zens is to found good establishments for public education, to 
provide them with able masters— direct them with prudence 
— ^and pursue such mild and suitable measures, that the citi* 
zens wUl not neglect to take advantage of them. How ad- 
mirable was the education of the Romans, in the flourLshing 
ages of their republic, and how admirably was it calculated to 
form great men ! The young men put themselves under the 
patronage of some illustrious person; they frequented his 
house, accompanied him wherever he went, and equally im- 
proved by his instructions and example : their very sports 
and amusements were exercises proper to form soldiers. The 
same practice prevailed at Sparta ; and this was one of the 
wisest institutions of the incomparable Lycurgus. That legis- 
lator and philosopher entered into the most minute details 
respecting the education of youth,* being persuaded that on 
that depended the prosperity and glory of his republic. 
; 113. Arta \^ho Can doubt that the sovereign — the whole nation — 
and sciences, ^^gj^^ ^^ encouragc the arts and sciences ? To say nothing of 
the many useful inventions that strike the eye of every be- 
holder, — ^literature and the polite arts enlighten the mind 
and soften the manners : and if study does not always inspire 
the love of virtue, it is because it sometimes, and even too 
often, unhappily meets with an incorrigibly vicious heart. 
The nation and its conductors ought then to protect men of 
learning and great artists, and to call forth talents by honours 
and rewards. Let the friends of barbarism declaim against 
the sciences and polite arts ; — ^let us, without deigning to an- 
[ 49 ] swer their vain reasonings, content ourselves with appealing 
to experience. Let us compare England, France, Holland, 
and several towns of Switzerland and Germany, to the many 
regions that lie buried in ignorance, and see where we can 
find the greater number of honest men and good citizens. It 
would be a gross error to oppose against us the example of 
Sparta, and that of ancient Rome. They, it is true, neglected 
curious speculations, and those branches of knowledge and art 
that were purely subservient to pleasure and amusement ; but 
the solid and practical sciences — ^morality, jurisprudence, 
politics, and war — were cultivated by them, especially by the 
Romans, with a degree of attention superior to what we be- 
stow upon them. 

In the present age, the utility of literature and the polite 
arts is pretty generally acknowledged, as is likewise the neces- 
sity of encouraging them. The immortal Peter I. thought 
that without their assistance he could not entirely civilize 
Russia, and render it flourishing. In England, learning and 
abilities lead to honour and riches. Newton was honoured. 



* See Xenophon, Laeedmmon, Be9pHblica» 
120 



A GOOD GOVERNMBKT, ETC. 49 

protected, and rewarded while living, and after his death, his ^^^^ ^ 
tomb was placed among those of kings, France also, in this -.H^£i_EL 
respect, deserves particular praise ; to the munificence of her 
kings she is indebted for several establishments that are no 
less useful than glorious. The Royal Academy of Sciences 
diffuses on every side the light of knowledge and the desire 
of instruction. Louis XV. furnished the means of sending 
to search, under the equator and the polar bircle, for the proof 
of an important truth ; and we at present know what was be- 
fore only believed on the strength of Newton's calculations. 
Happy will that kingdom be, if the too general taste of the 
age does not make the people neglect solid knowledge, to give 
themselves up to that which is merely amusing, and if those 
who fear the light do not succeed in extinguishing the blaze of 
science ! 

I speak of the freedom of philosophical discussion, which j 114. Free- 
is the soul of the republic of letters. What can genius pro- ^o™ ©f p*"- 
duce, when trammelled by fear ? Can the greatest man that ^^^^ 
ever lived contribute much towards enlightening the minds of ®"""^°' 
his fellow-citizens, if he finds himself constantly exposed to 
the cavils of captious and ignorant bigots — ^if he is obliged to 
b© continually on his guard, to avoid being accused by innu- 
endo-mongers of indirectly attacking the received opinions ? 
I know that liberty has its proper bounds — that a wise govern- 
ment ought to have an eye to the press, and not to allow the 
publication of scandalous productions, which attack morality, 
government, or the established religion. But yet, great care 
should be taken not to extinguish a light that may afford the 
state the most valuable advantages. Few men know how to 
keep a just medium ; and the office of literary censor ought 
to be intrusted to none but those who are at once both prudent 
and enlightened. Why should they search in a book for what 
the author does not appear to have intended to put into it? 
And when a writer's thoughts and discourses are wholly em- [ 60 1 
ployed on philosophy, ought a malicious adversary to be list- 
ened to, who would set him at variance with religion ? So 
far from disturbing a philosopher on account of his opinions, 
the magistrate ought to chastise those who publicly charge 
him with impiety, when in his writings he shows respect to the 
religion of the state. The Romans seem to have been formed 
to give examples to the universe. That wise people carefully 
supported the worship and religious ceremonies established by 
law, and left the field open to the speculations of philosophers. 
Cicero— a senator, aconsul, an augur — ^ridicules superstition, 
attacks it, and demolishes it in his philosophical writings ; and, 
in so doing, he thought he was only promoting his own hap- 
piness and that of his fellow-citizens : but he observes that 
"to destroy superstition is not destroying religion ; for," says 
he, "it becomes a wise man to respect the institutions and 
religious ceremonies of his ancestors : and it is sufficient to 
i« L * 121 



50 



SECOND OBJECT OF 



BOOK I. 
CHAP. XT. 



contemplate the beautj of the world, and the admirable order 
of the celestial bodies, in order to be convinced of the exist- 
ence of an eternal and all-perfect being, who is entitled to the 
veneration of the human race.""*" And in his Dialogues oa 
the Nature of the Gods, he introduces Gotta the academic, 
who was high»priest, attacking with great freedom the opinions 
of the stoics, and declaring that he should always be ready to 
defend the established religion, from which he saw the republic 
had derived great advantages ; that neither the learned nor 
the ignorant should make him abandon it : he then says to his 
adversary, '' These are my thoughts,, both as pontiff and as 
Gotta. But do you, as a philosopher, bring me over to your 
opinion by the strength of your arguments : for a philosopher 
ought to prove to me the truth of the religion he would have 
me embrace, whereas I ought in this respect to believe our 
forefathers, even without proof."t 

Let us add experience to these examples and authorities. 
Never did a philosopher occasion disturbances in the state, 
or in religion, by his opinions : they would make no noise 
among the people, nor ever offend the weak, if malice or in- 
temperate zeal did not take pains to discover a pretended 
venom lurking in them. It is by him who endeavours to place 
the opinions of a great man in opposition to the doctrines and 
worship established by law, that the state is disturbed, and 
religion brought into danger. 
i 115. Love G^ instruct the nation is not sufficient : — ^in order to conduct 
of virtue, it to happiness, it is still more necessary to inspire the people 
with the love of virtue, and the abhorrence of vice. Those 
who are deeply versed in the study of morality are convinced 
that virtue is the true and only path that leads to happiness ; 
so that its maxims are but the art of living happily; and he 
must be very ignorant of politics, who does not perceive how 
much more capable a virtuous nation will be, than any other, 
of forming a state that shall be at once happy, tranquil, 
flourishing, solid, respected by its neighbours, and formidable 
to its enemies. The interest of the prince must then concur 



[51] 



and abhor- 
rence of 
yice, to be 
excited. 



* Nam, vLt rere loqnamur, superstitio 
fasa per gentes oppressit omniam fere 
axdmofl, atqiie omniuii imbeoiUitatem 
ooonpavit. . . . maltam enim et nobismet 
ipeis et nostris profutari videbamar, si 
earn fanditus sastnlifisemus. Nee vero 
(id enim dUigonter intelligi volo) sa- 
pentltione toUendl religio tollitar. 
Nam et majoram instituta tueri, sacris 
ceremoniisqne retinendis, sapientis est : 
et esse praestantem aliquam steraamque 
naturam, et earn suepioiondam, admi- 
randamqne bominam goneri, pnlchritudo 
mandi, ordoqaa oeelestium oogit conli- 
teri. De Divinatione, Ub. it 
122 



f Hamm ego reUgionem nvUam nn- 
qaam oontemnendam potari: mihiqa« 
ita pennasi, Romnlum aospioiia, Nn- 
mam sacris consUtutis, fWidamenta 
jecisse nostras oivitntis, qase nunquam 
profecto sine sumnvi placatione Deo- 
ram immortalium tai;tA esse potaisseL 
Habes, Balbe, quid Cotta, quid pontifex 
sentiat. Fao nunc ego. inteUigam, 
quid ta sentias: a te enim philosopbo 
rationem accipere debeo rellgionis ; ma- 
Joribus antem nostris, etiam nulla ra- 
tione reddita, credere. Ih Ntitmrtk IMo^ 
rum, Ub. iii. 



ETC. * 51 

-with his dntj and the dictates of his conscience, in engaging book l 
him to watch attentively over an affair of such importance. ^^^^' ^^ 
Let him employ all his authority in order to encourage virtue, 
and suppress vice : let the public establishments be all directed 
to this end : let his own conduct, his example, and the distri- 
bution of favours, posts, and dignities, all have the same ten- 
dency. Let him extend his attention even to the private life 
of the citizens, and banish from the state whatever is only 
calculated to corrupt the manners of the people. It belongs 
to politics to teach him in detail the different means of attain- 
ing this desirable end — ^to show him those he should prefer, 
and those he ought to avoid, on account of the dangers that 
might attend the execution, and the abuses that might be 
mjSe of them. We shall here only observe, in general, that 
vice may be suppressed by chastisements, but that mild and 
gentle methods alone can elevate men to the dignity of virtue; 
it may be inspired, but it cannot be commanded. 

It is an incontestable truth, that the virtues of the citizens i ii6. The 
constitute the most happy dispositions that can be desired by "^^^^'^^^y 
a just and wise government. Here then is an infallible cri-^^°*®^jj*'" 
terion, by which the nation may judge of the intentions of intention of 
those who govern it. If they endeavour to render the great its miers. 
and the common people virtuous, their views are pure and 
upright ; and you may rest assured that they solely aim at 
the great end of government — the happiness and glory of the 
nation. But if they corrupt the morals of the people, spread 
a taste for luxury, effeminacy, a rage for licentious pleasures 
— ^if they stimulate the higher orders to a ruinous pomp and 
extravagance— beware, citizens ! beware of those corrupters ! 
they only aim at purchasing slaves in order to exercise over 
them an arbitrary sway. 

If a prince has the smallest share of moderation, he will 
never have recourse to these odious methods. Satisfied with 
his superior station and the power given him by the laws, he 
proposes to reign with glory and safety ; he loves his people, 
and desires to render them happy. But his ministers are in 
general impatient of resistance, and cannot brook the slightest 
opposition : if he surrenders to them his authority, they are [ 52 ] 
more haughty and intractable than their master : they feel 
not for his people the same love that he feels : '^let the na- 
tion be corrupted (say they) provided it do but obey." They 
dread the courage and firmness inspired by ^drtue, and know 
that the distributor of favours rules as he pleases over men 
whose hearts are accessible to avarice. Thus a wretch who 
exercises the most infamous of all professions, perverts the 
inclinations of a young victim of her odious traffic; she 
prompts her to luxury and epicurism ; she inspires her with 
voluptuousness and vanity, in order the more certainly to 
betraj her to a rich seducer. This base and unworthy crea- 
ture IS sometimes chastised by the magistrate ; but the minis- 

123 



52 



SECOND OBJECT OF 



BOOK I. 
CHAP. XI. 



{117. 



ter, who is infinitely more gtiilty, wallows in wealth, and is 

invested with honour and authority. Posterity, however, will 

do him justice, and detest the corrupter of a respectable nation. 

Tb« If governors endeavoured to fulfil the obligations which the 



public por 
800, ougbt 
to perfect 
its ander- 
etanding 
and wilL 



^J^mCI^^ law of nature lays upon them with respect to themselves, and 
in their character of conductors of the state, they would be 
incapable of ever giving into the odious abuse just mentioned, 
Hitherto we have considered the obligation a nation is under 
to acquire knowledge and virtue, or to perfect its understand- 
ing and will ; — that obligation, I say, we have considered in re- 
lation to the individuals that compose a nation ; it also belongs 
in a proper and singular manner to the conductors of the state. 
A nation, while she acts in common, or in a body, is a moral 
person (Prelim. § 2) that has an understanding and will of her 
own, and is not less obliged than any individual to obey the 
laws of nature (Book I. § 5), and to improve her faculties 
(Book I. § 21). That moral person resides in those who are 
invested with the public authority, and represent the entire 
nation. Whether this be the common council of the nation, 
an aristocratic body, or a monarch, this conductor and repre- 
sentative of the nation, this sovereign, of whatever kind, is 
therefore indispensably obliged to procure all the knowledge 
and information necessary to govern well, and to acquire the 
practice and habit of all the virtues suitable to a sovereign. 

And as this obligation is imposed with a view to the public 
welfare, he ought to direct all his knowledge, and all his vir- 
tues, to the safety of the state, the end of evil society. 

He ought even to direct, as much as possible, all the abili- 
to direct the ties, the knowledge, and the virtues of the citizens to this 
knowledge gj.gj^|; ^^^ . qq ^hat they may not only be useful to the indi- 
viduals who possess them, but also to the state. This is one 
of the great secrets in the art of reigning. The state will be 
powerful and happy, if the good qualities of the subject, pass- 
ing beyond the narrow sphere of private virtues, become civic 
virtues. This happy disposition raised the Roman republic 
to the highest pitch of power and glory. 

The grand secret of giving to the virtues of individuals a 



i 118. And 



and Tirtues 
of the citi- 
sens to the 
welfare of 
the society. 



{119. Love 
for their 
country. 

[53] 



turn so advantageous to the state, is to inspire the citizens 
with an ardent love for their country. It will then naturally 
follow, that each will endeavour to serve the state, and to 
apply all his powers and abilities to the advantage and glory 
of the nation. This love of their country is natural to all 
men. The good and wise Author of nature has taken care to 
bind them, by a kind of instinct, to the places where they 
received their first breath, and they love their ovm nation, as 
a thing with which they are intimately connected. But it 
often happens that some causes unhappily weaken or destroy 
this natural impression. The injustice or the severity of the 
government too easily effaces it from the hearts of the sub- 
jects ; can self-love attach an individual to the affairs of a 

124 



A GOOD GOYBRNMENT, ETC. 53 

country where every thing is done with a view to a single per- book i. 
son ? — ^far from it : — ^we see, on the contrary, that free nations ^^^^' "• 



are passionately interested in the glory and the happiness of 
their country. Let us call to mind the citizens of Rome in 
the happy days of the republic, and consider, in modern times, 
the English and the Swiss. 

The love and affection a man feels for the state of which j 120, in 
he is a member, is a necessary consequence of the wise and indiTidwOs. 
rational love he owes to himself, since his own happiness is 
connected with that of his country. This sensation ought 
also to flow from the engagements he has entered into with 
society. He has promised to procure its safety and advan- 
tage as far as in his power : and how can he serve it with zeal, 
fidelity, or courage, if he has not a real love for it ? 

The nation in a body ought doubtless to love itself, and desire j 121. in 
its own happiness as a nation. The sensation is too natural tiie nation 
to admit of any failure in this obligation : but this duty relates ^^ ■*•*• *^ 
more particularly to the conductor, the sovereign, who repre- JJ^'^^_™ 
sents the nation, and acts in its name. He ought to love it reign, 
as what is most dear to him, to prefer it to every thing, for 
it is the only lawful object of his care, and of his actions, in 
every thing he does by virtue of the public authority. The 
monster who does not love his people is no better than an 
odious usurper, and deserves, no doubt, to be hurled from the 
throne. There is no kingdom where the statue of Codrus 
ought not to be placed before the palace of the sovereign. 
That magnanimous king of Athens sacrificed his life for Ids 
people.* That great prince and Louis XII. are illustrious 
models of the tender love a sovereign owes to his subjects. 

The term, Country y seems to be pretty generally known : j 122. De- 
but as it is taken in different senses, it may not be unusefulfinition of 
to give it here an exact definition. It commonly signifies the *^® *®"^ 
St^ of which one is a member : in this sense we have used®^^*^* 
it in the preceding sections ; and it is to be thus understood [ 54 ] 
in the law of nations. 

In a more confined sense, and more agreeably to its ety- 
mology, this term simifies the state, or even more particularly 
the town or place where our parents had their fixed residence 
at the moment of our birth. In this sense, it is justljjr said, 
that our country cannot be changed, and always remains the 
same, to whatsoever place we may afterwardis remove. A 
man ought to preserve gratitude and affection for the state 
to which he is indebted for his education, and of which his 
parents were members when they gave him birth. But as 
various lawful reasons may oblige him to choose another coun- 
try, — ^that is, to become a member of another society; so, 

* His country being attacked by the sbonld remain yiotorionfl, Codnu diB- 
Heraelids, he conralted the orade of goimd himflelf, and, nuhing into the 
ApoUo; and being answered, that the battle, was killed by one of the enemy's 
people whose ebief should be slain soldiers. 

l2 125 



54 OBJECT OF A GOOI) GOYEUNMENT. 

BOOK I. when we speak in general of the duty to our country, the 
^^^^' "• term is to be understood as meaning the state of which a man 



is an actual member ; since it is the latter, in preference to 
every other state, that he is bound to serve with his utmost 
efforts. 
; 123. How If every man is obliged to entertain a sincere love for his 
ahameftii country, and to promote its welfare as far as in his power, it 
nd toto-" ^® * shameful and detestable crime to injure that very country, 
jure our He who bccomes guilty of it, violates his most sacred en- 
oonntry. gagements, and sinks into base ingratitude: he dishonours 
himself by the blackest perfidy, since he abuses the confidence 
of his fellow-citizens, and treats as enemies those who had a 
right to expect his assistance and services. We see traitors 
to their country only amons those men who are solely sensi- 
ble to base interest, who omy seek their own immediate ad- 
vantage, and whose hearts are incapable of every sentiment 
of affection for others. They are, therefore, justly detested 
by mankind in general, as the most infamous of all villains. 
2 124. The On the contrary, those generous citizens are loaded with 
glory of honour and praise, who, not content with barely avoiding a 
MM (W) f^^^^ ^ ^^*y *^ ^^^ country, make noble efforts in her 
favour, and are capable of making her the greatest s^rifices. 
Examples. The names of Brutus, Curtius, and the two Decii, will live 
as lon^ as that of Bome. The Swiss will never forget Ar- 
nold de Winkelried, that hero, whose exploit would have 
deserved to be transmitted to posterity by the pen of a Livy. 
He truly devoted his life for his country's sake : but he de- 
voted it as a general, as an undaunted warrior, not as a su- 
perstitious visionary. That nobleman, who was of the country 
of Underwald, seeing, at the battle of Sempach, that his 
countrymen could not break through the Austrians, because 
the latter, armed cap-a-pie, had dismounted, and, forming a 
close battalion, presented a front covered with steel, and 
bristling with pikes and lances, — ^formed the generous d^si^ 
of sacrificing himself for his country. *' My friends," said 
he to the Swiss, who began to be dispirited, " I will this day 
give my life to procure you the victory : I only recommend 
to you my family : follow me, and act in consequence of what 
[ 55 ] you see me do." At these words he ranged them in that form 
which the Romans called cuneus, and placing himself in the 
point of the triangle, marched to the centre of the enemy ; 
when, embracing between his arms as many of the enemy's 
pikes as he could compass, he threw himself to the ground, 
thus opening for his followers a passage to penetrate into the 
.midst of this thick battalion. The Austrians, once broken, 
were conquered, as the weight of their armour then became 
fatal to them, and the Swiss obtained a complete victory."^ 

(51) See obaervaUoAS, po»t, { 190, 1386. The Axastrian ariay oontuted 

p. 92. — G. of four tliottwad chosen men, among 

* This afbir happened in the year whom were a great n«|nW of princea, 
126 



OF PIETY AND EBLIGION. 55 



BOOK I. 
CHAP. XII. 



CHAP. XII. 

OP PIETY AND RELIGION. 

PIETY and religion have an essential influence on the 1 125. Of 
happiness of a nation, and, from their importance, deserve a piety, 
particular chapter. Nothing is so proper as piety to strength- 
en virtue, and give it its due extent. By the word Piety ^ I 
mean a disposition of soul that leads us to direct all our 
actions towards the Deity, and to endeavour to please him 
in every thing we do. To the practice of this virtue all 
mankind are indispensably obliged : it is the purest source 
of their felicity; and those who unite in civil society are 
under still greater obligations to practise it. A nation ought 
then to be pious. The superiors intrusted with the public 
affairs should constantly endeavour to deserve the approba- 
tion of their divine Master ; and whatever they do in the 
nama of the state, ought to be regulated by this grand view. 
The care of forming pious dispositions in all the people should 
be constantly one of the principal objects of their vigilance, 
and from this the state will derive very ^eat advantages. A 
serious attention to merit, in all our actions, the approbation 
of an infinitely wise Being, cannot fail of producing excellent 
citizens. Enlightened piety in the people is the firmest sup- 
port of a lawful authority ; and, in the sovereign's heart, it 
is the pledge of the people's safety, and excites their confi- 
dence. Ye lords of the earth, who acknowledge no superior 
here below, what security can we have for the purity of your 
intentions, if we do not conceive you to be deeply impressed 
with respect for the common Father and Lord of men, and 
animated with a desire to please him 7 

We have already insinuated that piety ought to be at- j 126. it 
tended with knowledge. In vain would we propose to please ought to be 
God, if we know not the means of doing it. But what a *^^?®* 
deluge of evils arises, when men, heated by so powerful aj^^^, 
motive, are prompted to take methods that are equally false [ 56 1 
and pernicious ! A blind piety only produces superstitious 
bigots, fanatics, and persecutors, a thousand times more dan- 
gerous and destructive to society than libertines are. There 
have appeared barbarous tyrants who have talked of nothins 
but the glory of God, while they crushed the people, and 

counts, and nobility of dlstingoiBhed noblemen of the beat familiefl in Ger- 

rank, all armed from head to foot many. Hiatory of eAe Hthetic Con- 

The Swiss were no more than thirteen feieracy^ hy Dk Wattbyjllb, vol. L p. 

hundred men, iU armed. In this battle, 183. — Tschudi. — ^ETTERLiir. — Schods- 

the duke of Austria perished, with two lbb. — Rjibmav. — [See the national 

thousand of his forces, in which num- consequences of this valour, stated po9<, 

ber wore six hundred and serenly-siz J 190, pp. 92-3.] 

127 



56 OP PIETY AND RELIGION. 

BOOK I. trampled under foot the most sacred laws of nature. It was 
CHAP. XII. fj.Qjj^ ^ refinement of piety, that the anabaptists of the six- 
teenth century refused all obedience to the powers of the 
earth. James Clement and Ravaillac,'*' those execfable par- 
ricides, thought themselves animated by the most sublime 
devotion, 
g 127. Of Religion consists in the doctrines concerning the Deity and 
religion in- ^]jg things of another life, and in the worship appointed to 
externa° *^® honour of the Supreme Being. So far as it is seated in 
the hearty it is an affair of conscieneey in which every one 
ought to be directed by his own understanding : but so far as 
it is external, and publicly established, it is an affair of state, 
§ 128. Every man is obliged to endeavour to obtain just ideas of 

Rights of (}q(J^ to know his laws, his views with respect to his crea- 
individuais. ^ureg^ and the end for which they were created. Man doubt- 
less owes the most pure love, the most profound respect to 
his Creator ; and to keep alive these dispositions, and act in 
consequence of them, he should honour God in all his actions, 
and show, by the most suitable means, the sentiments that fill 
Liberty of his mind. This short explanation is sufficient to ptove that 
conscience, j^^n is essentially and necessarily free to make use of his 
own choice in matters of religion. His belief is not to be 
commanded ; and what kind of worship must that be which 
is produced by force ? Worship consists in certain actions 
performed with an immediate view to the honour of God ; 
there can be no worship proper for any man, which he does 
not believe suitable to that end. The obligation of sincerely 
endeavouring to know God, of serving him, and adoring him 
from the bottom of the heart, being imposed on man by his 
very nature, — it is impossible that, by his engagements with 
society, he should have exonerated himself from that duty, 
or deprived himself of the liberty which is absolutely neces- 
sary for the performance of it. It must then be concluded, 
that liberty of conscience is a natural and inviolable right. 
It is a disgrace to human nature, that a truth of this kind 
should stand in need of proof. 
^ 129. Pnb- But we should take care not to extend tliis liberty beyond 
liceetabiiab-its just bounds. In rcligious affairs a citizen has only a 
Urion°(62T ^S^^ *^ ^^ ^^®® ^^^^ compulsion, but can by no means claim 
that of openly doing what he pleases, without regard to the 
[ 57 ] consequences it may produce on society. (52) The establish- 
ment of religion by law, and its public exercise, are matters 
of state, and are necessarily under the jurisdiction of the 
- — ■ ■ ■ # 

* The former auassinated Henry IIL to have been an impostor, and a mnr- 

of France ; the latter mordered his sue- deror in principle, and a fanatic, is an 

cessor, Henry IV. indictable misdemeanor at common law. 

(52) With respect to these in Bng- Rex y. Waddington, 1 Bam. A Cress. 26. 

land, and punishments for the viola- And as to modem regulation, see 4 Bla. 

tion, see 4 Bla. Oom. il to 66. Bias- Com. 443.— C. 
phemy, or a UbeL staUng our Saviour 
128 



OP PIETY AND RELIGION. 57 

political authority. If all men are bound to serve God, the ^^^ '• 
entire nation, in her national capacity, is doubtless obliged to — ^ — '- 
serve and^ honour him (Prelim. § 5). And as this i^^portant^"^^'^^^^ 
duty is to be discharged by the nation in whatever manner ^^tion^ 
she judges best, — to the nation it belongs to determine what 
religion she will follow, and what public worship she thinks 
proper to establish. 

If there be as yet no religion established by public autho- j 130. when 
rity, the nation ought to use the utmost care, in order to there is m 
know and establish the best. That which shall have the ap-y^^'^V'***- 
probation of the majority shall be received, and publicly esta- j. . ® ^^' 
Wished by law ; by which means it will become the religion 
of the state. But if a considerable part of the nation is ob- 
stinately bent upon following another, it is asked — ^What does 
the law of nations require in such a case ? Let us first re- 
member that liberty of conscience is a natural right, and that 
there must be no constraint in this respect. There remain 
then but two methods to take, — either to permit this party 
of the citizens to exercise the religion they choose to profess, 
or to separate them from the society, leaving them their 
property, and their share of the country that belonged to the 
nation in common, — and thus to form two new states instead 
of one. The latter method appears by no means proper : it 
would weaken the nation, and thus would be inconsistent with 
that regard which she owes to her own preservation. It is 
therefore of more advantage to adopt the former method, and 
thus to establish two religions in the state. But if these re- 
ligions are too incompatible ; if there be reason to fear that 
they will produce divisions among the citizens, and disorder 
in public affairs, there is a third method, a wise medium be- 
tween the two former, of which the Swiss have furnished ex- 
amples. The cantons of Glaris and Appenzel were, in the 
sixteenth century, each divided into two parts : the one pre- 
served the Romish religion, and the other embraced the Refor- 
mation ; each part has a distinct government of its own for 
domestic afiairs ; but on foreign affairs they unite, and form 
but one and the same republic, one and the same canton. 

Finally, if the number of citizens who would profess a dif- 
ferent religion from that established by the nation be incon- 
siderable ; and if, for good and just reasons, it be thought 
improper to allow the exercise of several religions in the state 
— those citizens have a right to sell their lands, to retire with 
their families, and take all their property with them. For 
their engagements to society, and their submission to the 
public authority, can never oblige them to violate their con- 
sciences. If the society will not allow me to do that to which 
I think myself bound b^ an indispensable obligation, it is 
obliged to allow me permission to depart. 

When the choice of a religion is already made, and thclte i«f I i3i. When 
one established by law, the nation ought to protect and sup-*^®'® " ^ 
17 120 



58 OF PIETY AND RELIGION. 

BOOK I. port that reliffion, and preserve it as an establishment of the 

CHAP XIT • •! 1 11*11 •• 1 

Btabii'h d' g^®**'^^* importance, without, however, bhndly rejecting the 
religion/ changes that may be proposed to render it more pure and 
usefin : for we ought, in all things, to aim at perfectidh (§ 21). 
But as all innovations, in this case, are full of danger, and 
can seldom be produced without disturbances, they ought not 
to be attempted upon slight grounds, without necessity, or 
very important reasons. It solely belongs to the society, the 
state, the entire nation, to determine the necessity or propriety 
of those changes ; and no private individual has a right to 
attempt them by his own authority, nor consequently to preach 
to the people a new doctrine. Let him offer his sentiments to 
the conductors of the nation, and submit to the orders he re- 
ceives from them. 

But if a new religion spreads, and becomes fixed in the 
minds of the people, as it commonly happens, independently 
of the public authority, and. without any deliberation in com- 
mon, it will be then necessary to adopt the mode of reasoning 
we followed in the preceding section on the case of choosing 
a religion ; to pay attention to the number of those who follow 
the new opinions — ^to remember that no earthly power has 
authority over the consciences of men, — and to unite the 
maxims of sound policy with those of justice and equity. 
i 132. Dtt- We have thus given a brief compendium of the duties and 
ties and rights of a nation with regard to religion. Let us now come 
sovereign * ^ thosc of the Sovereign. These cannot be exactly the same 
with regard as those of the nation which the sovereign represents. The 
to religion, nature of the subject opposes it .; for in religion nobody can 
give up his liberty. To give a clear and distinct view of those 
riffhts and duties of the prince, and to establish them on a 
soUd basis, it is necessary here to refer to the distinction we 
have made in the two preceding sections : if there is question 
of establishing a religion in a state that has not yet received 
one, the sovereign mav doubtless favour that which to him 
appears the true or the oest religion, — may have it announced 
to the people, and, by mild and suitable means, endeavour to 
establish it: — ^he is even bound to do this, because he is 
"" obliged to attend to every thing that concerns the happiness of 

the nation. But in this he has no right to use authority and 
constraint. Since there was no religion established in the 
society when he received his authority, the people gave him 
no power in this respect ; the support of the laws relating to 
religion is no part of his office, and does not belong to the au- 
thority with which they intrusted him. Numa was the founder 
of the religion of the ancient Romans : but he persuaded the 
people to receive it. If he had been able to command in that 
instance, he would not have had recourse to the revelations 
of the nymph Egeria. Though the sovereign cannot exert 
any authority in order to establish a religion where there is 
none, he is authorized, and even obliged, to employ all hi^ 

130 



OF PIETY AND RELIGION. 59 

power to hinder the introduction of one which he judges per- book i. 
nicious to morality and dangerous to the state. For he ought ^^^^' ^"' 
to preserve his people from every thing that may be injurious 
to them ; and so far is a new doctrine from being an excep- 
tion to this rule, that it is one of its most important objects. 
We shall see, in the following sections, what are the duties 
and rights of the prince in regard to the religion publicly es- 
tablished. 

The prince, or the conductor, to whom the nation has in- § 133. 
trusted the care of the government and the exercise of the Where 
sovereign power, is obliged to watch over the preservation of *^®'?,!\*^ 
the received religion, the worship established by law, and has ^^^^1^,^/ 
a right to restrain those who attempt to destroy or disturb it. 
But to acquit himself of this duty in a manner equally just 
and wise, he ought never to lose sight of the character m 
which he is called to act, and the reason of his being invested 
with it. Religion is of extreme importance to the peace and 
welfare of society ; and the prince is obliged to have an eye 
to every thing in which the state is interested. This is all 
that calls him to interfere in religion, or to protect and defend 
it. It is therefore upon this footing only that he c^-n inter- 
fere : consequently, he ought to exert his authority against 
those alone whose conduct in religious matters is prejudicial 
or dangerous to the state ; but he must not extend it to pre- 
tended crimes against God, the punishment of which exclu- 
sively belongs to the Sovereign Judge, the searcher of hearts. 
Let us remember that religion is no farther an affair of state, 
than as it is exterior and publicly established : that of the 
heart can only depend on the conscience. The prince has no 
right to punish any persons but those that disturb society ; 
and it would be very unjust in him to inflict pains and penal- 
ties on any person whatsoever for his private opinions, when 
that person neither takes pains to divulge them, nor to obtain 
followers. It is a principle of fanaticism, a source of evils 
and of the most notorious injustice, to imagine that frail mor- 
tals ought to take up the cause of God, maintain his glory by 
acts of violence, and avenge him on his enemies. Let us only 
give to sovereigns^ said a great statesman and an excellent 
citizen* — ^let us give them, for the common advantage, the 
power of punishing whatever is injurious to charity in so- 
eietg. It appertains not to human justice to become the aven- 
ger of what concerns the cause of Q-od.f Cicero, who was as 
able and as great in state affairs as in philosophy and elo- 
quence, thought like the Duke of Sully. In the laws he pro- 
poses relating to religion, he says, on the subject of piety 
and interior religion, " if any one transgresses, God will re- 
venge it :" but he declares the crime capital that should be 

« The Dake de SaUy; see his Me- f Deoram injarife diia curw.— TaeiV. 
moirs digested by M. do I'Eclnse^ toI. y. Ann, book i. c. 73. 
pp. 135, 136. 

131 



59 



OF PIETY AND RELIGION. 



BOOK !. 
CHAP, xir. 

[60] 



2 134. Ob- 
jects of his 
caro, and 
the moans 
he ought to 
employ. 



i 135. Of 
toleration. 
(53) 



committod against the religious ceremonies established for pub. 
lie affairs, and in which the whole state is concerned.* The 
wise Romans were very far from persecuting a man for his 
creed ; they only required that people should not disturb the 
public order. 

The creeds or opinions of individuals, their sentiments with 
respect to the Deity, — ^in a word, interior religion — should, 
like piety, be the object of the prince's attention : he should 
neglect no means of enabling his subjects to discover the truth, 
and of inspiring them with good sentiments ; but he should 
employ for this purpose only mild and paternal methods.f 
Here he cannot command (§ 128). It is in external religion 
and its public exercise that his authority may be employed. 
His task is to preserve it, and to prevent the disorders and 
troubles it may occasion. To preserve religion, he ought to 
maintain it in the purity of its institution, to take care that it 
be faithfully observed in all its public acts and ceremonies, 
and punish those who dare to attack it openly. But he can 
require nothing by force except silence, and ought never to 
oblige any person to bear a part in external ceremonies : — ^by 
constraint, he would only produce disturbances or hypocrisy. 

A diversity of opinions and worship has often produced 
disorders and fatal dissensions in a state : and for this rea- 
son, many will allow but one and the same religion. A pru- 
dent and equitable sovereign will, in particular conjunctures, 
see whether it be proper to tolerate or forbid the exercise of 
several different kinds of worship. 

But, in general, we may boldly affirm that the most cer- 
tain and equitable means of preventing the disorders that may 
be occasioned by difference of religion, is a universal tolera- 
tion of all religions which contain no tenets that are danger- 
ous either to morality or to the state. Let interested priests 
declaim ! they would not trample under foot the laws of hu- 
manity, and those of God himself, to make their doctrine 
triumph, if it were not the foundation on which are erected 
their opulence, luxury, and power. Do but crush the spirit 
of persecution, — ^punish severely whoever shall dare to dis- 
turb others on account of their creed, and you will see all 
sects living in peace in their common country, and ambitions 
of producing good citizens. Holland, and the states of the 
King of Prussia, furnish a proof of this: Oalvinists, Lutherans, 
Catholics, Pietists, Socinians, Jews, all live there in peace, 
because they are equally protected by the sovereign ; and none 
are punished, but the disturbers of the tranquillity of others. 



* Qui seoufl faxity Dens ipM vindex 

crtt Qui non paruerit» oapitale 

esto. — De Legih, lib. ii. 

•f Qoaa (religiones) non meta, sed 
ea conjunctione qasB est homini cam 
Deo, conserTandaa puto. Cieero de Le» 
132 



gib. lib. i. W^at a fine lesson does 
this pagan philosopher give to Chris> 
tians! 

(68) See the modern enaotments, 4 
Bla. Com. 440, 448; Id. 52, 53, in the 
notes.— C. 



OF PIBTY AND RELIGION. 60 

If, in spite of the prince's care to preserve the established book i. 
religion, the entire nation, or the greater part of it, should ^"^p- "'- 
be disgusted with it, and desire to have it changed, the sove-^ ^^^•.^**** 
reign cannot do violence to his people, nor constrain them in^ughrtodo 
an affair of this nature. The public religion was established when the 
for the safety and advantage of the nation : and, besides its nation is re- 
proving inefficacious when it ceases to influence the heart, the *®^^°** *? 
sovereign has here no other authority than that which results ^^1^^?^**^ 
from the trust reposed in him by the people, and they have 
only committed to him that of protecting whatever religion [ 61 ] 
they think proper to profess. 

But at the same time it is very just that the prince should ? 137. Dif- 
have the liberty of continuing in the profession of his own ^^^f °c« ^' 
religion, without losing his crown. Provided that he protect ^^^^^^'^p^^^' 
the religion of the state, this is all that can be required of a prince of 
him. In general, a difference of religion can never make i^w «own. 
any prince forfeit his claims to the sovereignty, unless a fun- 
damental law ordain it otherwise. The pagan Romans did 
not cease to obey Constantino when he embraced Christian- 
ity ; nor did the Christians revolt from Julian after he had 
quitted it.* 

We have established liberty of conscience for individuals { 138. Du- 
(§ 128). However, we have also shown that the sovereign*!®**'"^ 
has a right, and is even under an obligation, to protect and [overei^ 
support the religion of the state, and not suffer any person reconciled 
to attempt to corrupt or destroy it, — that he may even, ac- ^^^ those 
cording to circumstances, permit only one kind of public ?^ ^^^ *"^" 
•worship throughout the whole country. Let us reconcile ^^^ ' 
those different duties and rights, between which it may be 
thought that there is some contradiction : — let us, if possible, 
omit no material argument on so important and delicate a 
subject. 

If the sovereign will allow the public exercise of only one 
and the same religion, let him oblige nobody to do any thing 
contrary to his conscience ; let no subject be forced to bear a 
part in a worship which he disapproves, or to profess a reli- 
gion which he believes to be false ; but let the subject on 
his part rest content with avoiding the guilt of a shameful 
hypocrisy ; let him, according to the light of his own know- 
ledge, serve God in private and in his own house — persuaded 
that Providence does not call upon him for public worship, 
since it has placed him in such circumstances that he cannot 
perform it without creating disturbances in the state. God 
would have us obey our sovereign, and avoid every thing that 

* When the ehief part of the people nerertheless stiU retained all her rights. 

in the principality of Nenfchatel and The state counsel enacted ecclesiastical 

VaUangin embraced the reformed re- laws and constitutions similar to those 

Ugion in the sixteenth century, Joan of of the reformed churches in Switzerland, 

Hochberg, their sovereign, continued to and the princess gave them her sanc- 

Uve in the Roman Catholic faith, and tion. 

M 133 



61 



OP PIETY AND RELIGION. 



BOOK I. 
CHAP. XII. 



[62] 



§ 130. Tho 
sovereign 
ought to 
have the in- 
spection of 
UiO affairs 
of religion, 
and autho- 
rity over 
those who 
teaohit. 



may be pernicious to society. These are immutable precepts 
of the law of nature : the precept that enjoins public wor- 
ship is conditional, and dependent on the effects which that 
worship may produce. Interior worship is necessary in its 
own nature ; and we ought to confine ourselves to it, in all 
cases in which it is most convenient. Public worship is ap- 
pointed for the edification of men in glorifying God : but it 
counteracts that end, and ceases to be laudable, on those oc- 
casions when it only produces disturbances, and dves offence. 
If any one believes it absolutely necessary, let him quit the 
country where he is not allowed to perform it according to 
the dictates of his own conscience ; let him go and join those 
who profess the same religion with himself. 

The prodigious influence of religion on the peace and wel- 
fare of society incontrovertibly proves that the conductor of 
the state ought to have the inspection of what relates to it, 
and an authority over the ministers who teach it. The end 
of society and of civil government necessarily requires that 
he who exercises the supreme power should be invested with 
all the rights without which he could not exercise it in a 
manner the most advantageous to the state. These are the 
prerogatives of majesty (§ 45), of which no sovereign can di- 
vest himself, without the express consent of the nation. The 
inspection of the affairs of religion, and the authority over its 
ministers, constitute, therefore, one of the most important of 
those prerogatives, since, without this power, the sovereign 
would never be able to prevent the disturbances that religion 
might occasion in the state, nor to employ that powerful en- 
gine in promoting the welfare and safety of the society. It 
would be certainly very strange that a multitude of men who 
united themselves in society for their common advantage, 
that each might, in tranquillity, labour to supply his necessi- 
ties, promote his own perfection and happiness, and live as 
becomes a rational being : it would be very strange, I say, 
that such a society should not have a right to follow their 
own judgment in an affair of the utmost importance ; to de- 
termine what they think most suitable with regard to religion ; 
and to take care that nothing dangerous or hurtful be mixed 
with it. Who shall dare to dispute that an independent na- 
tion has, in this respect as in all others, a right to proceed 
according to the light of conscience ? and when once she has 
made choice of a particular religion and worehip, may she uot 
confer on her conductor all thp power she possesses of regu- 
lating and directing that religion and worship, and enforcing 
their observance ? 

Let us not be told that the management of sacred thines 
belongs not to a profane hand. Such discourses, when brought 
to the bar of reason, are found to be only vain declamations. 
There is nothing on earth more august and sacred than a sove- 
reign ; and why should God, who calls him by his providence 

134 



OF PIETY AND RELIGION. 62 



BOOK L 

CBAP. xn. 



to watch over the safety and happiness of a whole nation, de- 
prive him of the direction of the most powerful spring that 
actuates mankind ? The law of nature secures to him this 
right, with all others that are essential to good government ; 
and nothing is to be found in Scripture that changes this dis- 
position. Among the Jews, neither the king nor any other 
person could make any innovation in the law of Moses ; but 
the sovereign attended to its preservation, and could check 
the high priest when he deviated from his duty. Where is it 
asserted in the New Testament, that a Christian prince has 
notliing to do with religious affairs? Submission and obe- 
dience to the superior powers are there clearly and expressly 
enjoined. It were in vain to object to us the example of the [ 68 ] 
apostles, who preached the gospel in opposition to the will of 
sovereigns : — ^whoever would deviate from the ordinary rules, 
must have a divine mission, and establish his authority by 
miracles. 

No person can dispute that the sovereign has a right to take 
care that nothing contrary to the welfare and safety of the 
state be introduced into religion ; and, consequently, he must 
have a right to examine its doctrines, and to point out what is 
to be taught, and what is to be suppressed in silence. 

The sovereign ought, likewise, to watch attentively, in order ? ^^' ^® 
to prevent the established religion from being employed to pj^^^^^^j^^ 
sinister purposes, either by making use of its discipline to abuse of the 

§ ratify hatred, avarice, or other passions, or presenting its reoeWed re- 
octrines in a light that may prove prejudicial to the state. ^^^^ 
Of wild reveries, seraphic devotions, and sublime speculations, 
what would be the consequences to society, if it entirely con- 
sisted of individuals whose intellects were weak, and whose 
hearts were easily governed ? — the consequences would be a 
renunciation of the. world, a general neglect of business and 
of honest labour. This society of pretended saints would 
become an easy and certain prey to the first ambitious neigh- 
bour ; or if suffered to live in peace, it would not survive the 
first generation ; both sexes, consecrating their chastity to 
God, would refuse to co-operate in the designs of their Crea- 
tor, and to comply with the requisitions of nature and of the 
state. Unluckily for the missionaries, it evidently appears, 
even from Father Charlevoix' History of New France, that 
their labours were the principal cause of the ruin of the Hu- 
rons. That author expressly says, that a great number of 
those converts would think of nothing but the faith — ^that they 
forgot their activity and valour — that divisions arose between 
them and the rest of the nation, &c. That nation was, there- 
fore, soon destroyed by the Iroquois, whom they had before 
been accustomed to conquer.* 

To the prince's Inspection of the affairs and concern? of 

# Hifltow of Ifew draftee, bpojss t, ri, yw, 

m 



68 OF PIETY AND RELIGION. 

BOOK I. religion we have joined an authority over its ministers : with- 
CHAP. xn. ^^^ ^j^^ latter power, the former would be nugatory and inef- 



2 141. The fgctnai J — ^they are both derived from the same principle. It 
■mthori^'' ^ absurd, and contrary to the first foundations of society, 
over the mi- that any citizens should claim an independence of the sove- 
niBtera of reign authority, in ofiBces of such importance to the repose, 
Tf^^^T^ the happiness, and safety of the state. This is establishing 

two independent powers in the same society — an unfailing 
source of division, disturbance, and ruin. There is but one 
supreme power in the state ; the functions of the subordinate 
powers vary according to their different objects : — ecclesias- 
tics, magistrates, ana commanders of the troops, are all 
[ 64 ] officers of the republic, each in his own department ; and all 
are equally accountable to the sovereign. 

2 142. Na- A prince cannot, indeed, justly oblige an ecclesiastic to 
Minority " preach a doctrine, or to perform a religious rite, which the 

' latter does not think agreeable to the will of God. But if 
the minister cannot, in this respect, conform to the will of his 
sovereign, he ought to resign his station, and consider himself 
as a man who is not called to fill it — two things being neces- 
sary for the discharge of the duty annexed to it, viz. to teach 
and behave with sincerity, according to the dictates of his 
own conscience, and to conform to the prince's intentions and 
the laws of the state. Who can forbear being filled with in- 
dignation, at seeing a bishop audaciously resist the orders of 
the sovereign, and the decrees of the supreme tribunals, so- 
lemnly declaring that he thinks himself accountable to God 
alone for the power with which he is intrusted ? 

2 143. Rule On the other hand, if the clergy are rendered contempti- 
to be ob- Hq^ it ^[\\ i)e Qut of their power to produce the fruits for 
reroeot to ^"^^h their ministry was appointed. The rule that should 
eooiosiasticB. ^^ foUowed with respect to them may be comprised in a few 

words : — let them enjoy a large portion of esteem ; but let 
them have no authority, and still less any claim to inde- 
pendence. In the first place, let the clergy, as well as every 
other order of men, be, in their functions, as in every thing 
else, subject to the public power, and accountable to the 
sovereign for their conduct. Secondly, let the prince take 
care to render the ministers of religion respectable in the 
eyes of the people ; let him trust them with the degree of 
authority necessary to enable them to discharge their duty 
with success ; let him, in case of need, support them with the 
power he possesses. Every man in office ought to be vested 
with an authority commensurate to his functions ; otherwise 
he will be unable to discharge them in a proper manner. I 
see no reason why the clergy should be excepted from this 
general rule; only the prince should be more particularly 
watchful that they do not abuse their authority ; the affair 
being altogether the most delicate, and the most fruitful in 
dangers. If he renders the character of churchmen respecta- 

136 



OP PIETY AND RELIGION. 64 

ble, he should take care that this respect be not carried to ^^^^ ^ 

such a Buperstitious veneration as shall arm the hand of an ' — ' 

ambitious priest with a powerful engine with which he may 
force weak minds into whatever direction he pleases. When 
once the clergy become a separate body, they become formida- 
ble. The Romans (we shall often have occasion to recur to 
them) — the wise Romans elected from among the senators 
their pontifex-maximus and the principal ministers of the 
altar ; they knew no distinction between clergy and laity ; 
nor had they a set of gownsmen to constitute a separate class 
from the rest of the citizens. 

If the sovereign be deprived of this power in matters of i i^« ^- 
religion, and this authority over the clergy, how shall he pre- c*?^'*^**^*^ 
serve the religion pure from the admixture of any thing con- g^ns which 
trary to the welfare of the state ? How can he cause it to be establish the 
constantly taught and practised in the manner most conducive sovereign's 
to the public welfare i and, especially, how can he prevent ^^^^ ^ 
the disorders it may occasion, either by its doctrines, or the ^Ugi^^ 
manner in which its discipline is exerted ? These cares and f 65 ] 
duties can only belong to the sovereign, and nothing can dis- 
pense with his discharging them. 

Hence we see that the prerogatives of the crown, in eccle- Authorities 
siastical affairs, have been constantly and faithfully defended *°d •^a™- 
by the parliaments of France. The wise and learned magis-^^®"* 
trates, of whom those illustrious bodies are composed, are 
sensible of the maxims which sound reason dictates on this 
subject. They know how important it is not to suffer an 
affair of so delicate a nature, so extensive in its connections 
and influence, and so momentous in its consequences, to be 
placed beyond the reach of the public authority. — What! 
Shall ecclesiastics presume to propose to the people, as an 
article of faith, some obscure and useless dogma, which con- 
stitutes no essential part of the received religion ? — shall they 
exclude from the church, and defame those who do not show 
a blind obedience ? — shall they refuse them the sacraments, 
and even the rites of burial ? — and shall not the prince have 
power to protect his subjects, and preserve the kingdom from 
a dangerous schism ? 

The kings of England have asserted the prerogatives of 
their crown : theyhave caused themselves to be acknowledged 
heads of the church : and this regulation is equally approved 
by reason and sound policy, and is also conformable to ancient 
custom. The first Christian emperors exercised all the func- 
tions of heads of the church ; they made laws on subjects 
relating to it,* — summoned councils, and presided in them, — 
appointed and deposed bishops, &c. In Switzerland there 
are wise republics, whose sovereigns, knowing the full extent 
of the supreme authority, have rendered the ministers of 

* See the Th€odo9ian Code. 
18 M 2 137 



66 • OP PIETY AND RELIGION. 

BOOK I. religion subject to it, without offering violence to their con- 
CHAP. XII. g^jicjiccs^ They have prepared a formulary of the doctrines 
that are to be preached-, and published laws of ecclesiastical 
discipline, such as they would have it exercised in the coun- 
tries under their jurisdiction, — in order that those who will 
not conform to these establishments may not devote them- 
selves to the service of the church. They keep all the min- 
isters of religion in a lawful dependence, and suifer no exertion 
of church discipline but under their own authority. It is not 
probable that religion will ever occasion disturbances in these 
republics. 
i 145. Per- If Constantinc and his successors had caused themselves 
nicious con- to be ' formally acknowledged heads of the church, — ^and if 
^ruf^con Christian kings and princes had, in this instance, known how 
trary opi- ' ^^ maintain the rights of sovereignty, — would the world ever 
nion. have witnessed those horrid disorders produced by the pride 

and ambition of some popes and ecclesiastics, emboldened by 
[ 66 ] the weakness of princes, and supported by the superstition 
of the people, — rivers of blood shed in the quarrels of monks, 
about speculative questions that were often unintelligible and 
almost always as useless to the salvation of souls as in them- 
selves indifferent to the welfare of society — citizens and even 
brothers armed against each other, — subjects excited to revolt, 
and kings hurled from their thrones ? Tantum religio potuit 
suadere malorum ! The history of the emperors Henry IV., 
Frederick I., Frederick II., and Louis of Bavaria, is well known. 
TVas it not the independence of the ecclesiastics, — ^was it not 
that system in which the affairs of religion are submitted to a 
foreign power, — that plunged France into the horrors of the 
league, and had nearly deprived her of the best and greatest 
of her kings? Had it not been for that stranee and danger- 
ous system, would a foreigner. Pope Sextus v., have under- 
taken to violate the fundamental law of the kingdom, and 
declared the lawful heir incapable of wearing the crown? 
Would the world have seen, at other times and in other 
places,* the succession to the crown rendered uncertain by a 
bare informality — the want of a dispensation, whose validity 
w^as disputed, and which a foreign prelate claimed the sole 
right of granting ? Would that same foreigner have arro- 
gated to himself the power of pronouncing on the legitimacy 
of the issue of a king ? Would kings have been assassinated 
in consequence of a aetestable doctrine ?t Would a part of 
France have been afraid to acknowledge the best of their 
kings,t until he had received absolution from Rome ? And, 
would many other princes have been unable to give a solid 

♦ In England under Henry VIII. % Though Henry IV. returned to tli« 

t H«nry IIL and Henry IV. assas- Romish religion, a great number of 

slnated by fan»tios, who thought they Catholios did not dare to acknowledge 

were serrin^ God and th^ church by him until he had roceiyed ^te pope's 

stabbing their Hing, fkbsolntion, 

138 



OP PIETY AND RELIGION. 66 

peace to their people, because no decision could be formed book i. 
within their own dominions on articles or conditions in which SH^HJIL 
religion was interested ?* 

AH we have advanced on this subject, so evidently flows j 146. The 
from the notions of independence and sovereignty, that it will a;^«8«s par- 
never be disputed by any honest man who endeavours to rea- *^«^f""^ 
son justly. If a state cannot finally determine every thing erof^f*''" 
relating to religion, the nation is not free, and the prince is popes, 
but half a sovereign. There is no medium in this case ; either 
each state must, within its own territories, possess supreme 
power in this respect, as well as in all others, or we must 
adopt the system of Boniface VIIL, and consider all Koman 
Catholic countries as forming only one state, of which the 
pope shall be the supreme head, and the kings subordinate 
administrators of temporal affairs, each .in his province, — 
nearly as the sultans were formerly under the authority of the 
caliphs. We know that the above-mentioned pope had the 
presumption to write to Philip the Fair, king of France, Scire 
te volumiLS^ quod in spiritualibus et temporalibus nobis 8ubefi1[ [ 67 ] 
— "We would have thee know that thou art subject to us as 
well in temporals as in spirituals." And we may see in the 
canon law| his famous bull Unam sanctamy in which he at- 
tributes to the church two swords, or a double power, spiritual 
and temporal,— condemns those who think otherwise, as men, 
who, after the example of the Manicheans, establish two 
principles, — and finally declares, that it is an article of faith, 
necessary to salvation, to believe that every human creature is 
subject to the Roman pontiff. % 

We shall consider the enormous power of the popes as the 
first abuse that sprung from this system, which divests sove- 
reigns of* their authority in matters of religion. This power 
in a foreign court directly militates against the independence 

* Many kings of France in the civil posed him. In short, here are the ex- 
wan on account of religion. pressiona he made use .of in addressing 

f Turrttin, Hitt. EeclfioML Compen- the coancU assembled at Rome on the 

dium, p. 182. Where may also be occasion : '' Agite nunc, quaeso, patres 

seen the resolate answer of the king et principes sanctissimi, at omnis mun- 

of France. das intelligat et cognoscat, quia si po- 

X Bxtravag. (hmmun, lib. i. tit D« testis in coelo ligare et solTere, potestis 

Majoritate is Obedtetitia, in terra imperia, regna, principatas, 

2 Oregory YII. endeavoared to ren- ducatus, marchias, comitatas, et omni- 

der almost all the states of Earope am hominum possessiones, pro meritis 

tribatary to him. He maintained that tollere unicaiqae et concedere." Na- 

Hnngary, Dalmatia, Russia, Spain, tal, Albx. DUwrt. HiaL Eceh s. xi. and 

and Corsica, were absolutely his pro- xii. p. 334. 

perty, aa successor to St Peter, or were The canon law boldly decides that 

feudatory dependencies of the holy see. the regal power is subordinate to the 

Grko. Epi9t, Concil. toI. vi. Edit priesthood. ^'Imperium non prssest 

Harduin. — He summoned the emperor sacerdotio, sed subest, et ei obedire te- 

Henry IV. to i4)pear before him, and netur." Rubbic. ch. tL De Major, et 

make his defence against the accusa- Obed, " Et est multum allegabile," is 

tions of some of bis subjects : and, on the complaisant remark of the write" 

the emperor's non-compliance, he de< of the article. 

139 



67 OF PIETY AND RELIGION. 



BOOK I. of nations and the sovereignty of princes. It is capable of 
-^^^ — '- overturning a state ; and wherever it is acknowledged, the 
sovereign finds it impossible to exercise his authority in such 
a manner as is most for the advantage of the nation. We 
have already, in the last section, given several remarkable 
instances of this ; and history presents others without number. 
The senate of Sweden having condemned Trollius, archbishop 
of Upsal, for the crime of rebellion, to be degraded from his 
see, and to end his days in a monastery, pope Leo X. had the 
audacity to excommunicate the administrator Steno and the 
whole senate, and sentenced them to rebuild, at their own ex- 
pense, a fortress belonging to the archbishop, which they had 
caused to be demolished, and pay a fine of a hundred thousand 
ducats to the deposed prelate.* The barbarous Christiern, 
king of Denmark, took advantage of this decree, to lay waste 
the territories of Sweden, and to spill the blood of the most 
illustrious of her nobility. Paul V. thundered out an inter- 
dict against Venice, on account of some very wise laws made 
with respect to the government of the city, but which dis- 
pleased that pontiff, who thus threw the republic into an em- 
barrassment, from which all the wisdom and firmness of the 
[ 68 ] senate found it difiBcult to extricate it. Pius V., in his bull, 
In Coma Domini^ of the year 1567, declares, that all princes 
who shall introduce into their dominions any new taxes, of 
what nature soever they be, or shall increase the ancient ones, 
without having first obtained the approbation of the holy see, 
are ip9o facto excommunicated. Is not this a direct attack 
on the independence of nations, and a subversion of the au- 
thority of. sovereigns ? 

In those unhappy times, those dark ages that preceded 
the revival of literature and the Reformation, the popes at- 
tempted to regulate the actions of princes, under the pretence 
of conscience — to judge of the validity of their treaties — to 
break their alliances, and declare them null and void. But 
those attempts met with a \dgorous resistance, even in a 
country which is generally thought to have then possessed 
valour alone, with a very small portion of knowledge. The 
pope's nuncio, in order to detach the Swiss from the interests 
of France, published a monitory against all those cantons 
that favoured Charles VIII., declaring them excommunicated, 
if within the space of fifteen days they did not abandon the 
cause of that prince, and enter into the confederacy which 
was formed against him ; but the Swiss opposed this act, by 
protesting against it as an iniquitous abuse, and caused their 
protest to be publicly posted up in all the places under their 
jurisdiction : thus showing their contempt for a proceeding 
that was equally absurd and derogatory to the rights of sovc- 

♦ History of (he Sevolutiotu in Sioeden, 
140 



OF PIETY AND RELIGION. 68 

reigns.* We shall mention several other similar attempts, book i. 
when we come to treat of the faith of treaties, chap. xh. 

This power in the popes has given birth to another abuse, § i47. 
that deserves the utmost attention from a wise government. ^' ^^vo^ 
We see several countries in which ecclesiastical dignities, and ^entTcon- 
all the higher benefices, are distributed by a foreign power — ferredbya 
by the pope — ^who* bestows them on his creatures, and very foreign 
often on men who are not subjects of the state. This practice P®^®'- 
is at once a violation of the nation's rights, and of the prin- 
ciples of common policy. A nation ought not to suffer fo- 
reigners to dictate laws to her, to interfere in her concerns, 
or deprive her of her natural advantages ; and yet, how does 
it happen that so many states still tamely suffer a foreigner 
to dispose of posts and employments of the highest importance 
to their peace and happiness? The princes who consented 
to the introduction of so enormous an abuse were equally 
wanting to themselves and their people. In our times, the 
court of Spain has been obliged to expend immense sums, in 
order to recover, without danger, the peaceable possession of 
a right which essentially belonged to the nation or its head. 

Even in those states whose sovereigns have preserved so i 148. 
important a prerogative of the crown, the abuse in a great 3- Powerful 
measure subsists. The sovereign nominates, indeed, to bishop- "^^^^ ^^ 
rics and great benefices ; but his authority is not sufScient to ^^ foreign 
enable the persons nominated to enter on the exercise of their court, 
functions; they must also have bulls from Romcf By this [ 69 ] 
and a thousand other links of attachment, the whole body of 
the clergy in those countries still depend on the court of 
Rome ; &om it they expect dignities ; from it that purple, 
which, according to the proud pretensions of those who are 
invested with it, renders them equal to sovereigns. From the 
resentment of that court they have every thing to fear ; and 
of course we see them almost invariably disposed to gratify 
it on every occasion. On the other hand, the court of Rome 
supports those clergy with all her might, assists them by her 
politics and credit, protects them against their enemies, and 
against those who would set bounds to their power — ^nay, 
ouen against the just indignation of their sovereign ; and by 
this means attaches them to her still more strongly. Is it 
not doing an injury to the rights of society, and shocking the 
first elements of government, thus to suffer a great number 
of subjects, and even subjects in high posts, to be dependent 
on a foreign prince, and entirely devoted to him ? Would a 

* VogeT^ HUtorical and Political had to enoonnteri when he wished to 

Trtatite on ike AUiance$ between France oonfer the archbiBhoprio of Sens on 

and the Thirteen CbntoiM, pp. S3 and Benauld de Banne, arohbiBhop of Bour- 

36. ges, who had sared FrancOi by reoeiTing 

f We may see, in the letters of Cardi- that great pxince into the Boman Catho- 

* nal d'Ossaty what difficulties, what op- tio ohnrch. 
position, what long dolajs, Henzy IV. 

141 



69 



OP PIETY AND KELIOION, 



BOOK I. prudent sovereign receive men who preached such doctrines ? 
CHAP. xii> There needed no more to cause all the missionaries to be 

driven from China. 
I ^^^' It was for the purpose of more firmly securing the attach- 

bac^of Se"™®^* of churchmeu that the celibacy of the clergy was in- 
priestl * vented. A priest, a prelate, already bound to the see of 
Rome by his functions and his hopes, is further detached from 
his country, by the celibacy he is obliged to observe. He is 
not connected with civil society by a family : his grand inte- 
rests are all centred in the church ; and, provided he has the 
pope's favour, he has no further concern : in what country 
soever he was born, Rome is his refuge, the centre of hig 
adopted country. Everybody knows that the religious orders 
are a sort of papal militia, spread over the face of the earth, 
to support and advance the interests of their monarch. This 
is doubtless a strange abuse — ^a subversion of the first laws 
of society. But this is not all : if the prelates were married, 
they might enrich the state with a number of good citizens ; 
rich benefices affording them the means of giving their legiti- 
Convents. mate children a suitable education. But what a multitude 
of men are there in convents, consecrated to idleness under 
the cloak of devotion ! Equally useless to society in peace 
and war, they neither serve it by their labour in necessary 
professions, nor by their courage in arms : yet they enjoy 
immense revenues ; and the people are obliged, by the sweat 
of their brow, to furnish support for these swarms of slug- 
gards. What should we think of a husbandman who pro- 
[ 70 ] tected useless hornets, to devour the honey of his bees ?* It 
is not the fault of the fanatic preachers of overstrained 
sanctity, if all their devotees do not imitate the celibacy of 
the monks. How happened it that princes could suffer them 
publicly to extol, as the most sublime virtue, a practice 
equally repugnant to nature, and pernicious to society? 
Among the Romans, laws were made to diminish the number 
of those who lived in celibacy, and to favour marriage rf but 
superstition soon attacked such just and wise regulations ; 
and the Christian emperors, persuaded by churchmen, thought 
themselves obliged to abrogate them.J Several of the fa- 
thers of the church have censured those laws against celi- 
bacy — dotibtlesSf says a great man,§ with a laudaile zeal for 
the things of another life; hut with very little knowledge of 
the affaire of this. This great man lived in the church of 
Rome : — ^he did not dare to assert, in direct terms, that volun- 
tary celibacy is to be condemned even with respect to con- 



* This reflection haa no relation to 
the reUgioQB hoasea in which Uteratnre 
is cnltiTated. Establishments that af. 
ford to leained men a peaoeful retread 
and that leisnre and tranquillity re- 
quired in deep icientifio research, are 
142 



always landahle, and may become yery 
nsefU to the state, 
t The PapiA-PoppsBan law. 

1 In the Theodosian Code. 

2 The president de Montesquieu, in 
his Spirit of Laws. 



. nence. 



^ OF PIBTY AND RELIGION. 70 

seience and the things of another life : — but it is certainly a book l 
conduct well becoming genuine piety, to conform ourselves to ^"^'*' ^"' 
nature, to fulfil the views of the Creator, and to labour for 
the welfare of society. If a person is capable of rearing a 
family, let him marry, let him be attentive to give his chil- 
dren a good education: — in so doing, he will discharge his 
dutv, and be undoubtedly in the road to salvation. 

The enormous and dangerous pretensions of the clergy? 1 50. 
are also another consequence of this system, which places *• ^"^'" 
every thing relating to religion beyond the reach of the JJ^g"^^"jf 
civil power. In the first place, the ecclesiastics, under pre- the clergy, 
tence of the holiness of their functions, have raised them- 
selves above all the other citizens, even the principal magis- Pre-®™!- 
trates: and, contrary to the express mjunctions of their '*'*'"** 
master, who said to his apostles, seek not the first places at 
feasts^ they have almost everywhere arrogated to themselves 
the first rank. Their head, in the Koman church, obliges 
sovereigns to kiss his feet; emperors have held the bridle of 
his horse; and if bishops or even simple priests do not at 
present raise themselves above their prince, it is because the 
times will not permit it : they have not always been so mo- 
dest; and one of their writers has had the assurance to 
assert, that a priest is as much above a king as a man is above 
a beast.* How many authors, better known and more esteemed 
than the one just quoted, have taken a pleasure in praising 
and extolling that silly speech attributed to the emperor [ 71 ] 
Theodosius the First — Ambrose has taught m^ the great dif- 
ference there is between the empire and the priesthood ! 

We have already observed that ecclesiastics ought to be 
honoured: but modesty, and even humility, should charac- 
terize them : and does it become them to forget it in their 
own conduct, while they preach it to others ? I would not 
mention a vain ceremonial, were it not attended with very 
material consequences, from the pride with which it inspires 
many priests, and the impressions it may make on the minds 
of the people. It is essentially necessary to good order, that 
subjects should behold none in society so respectable as their 
sovereign, and, next to him, those on whom he has devolved 
.1 part of his authority. 

Ecclesiastics have not stopped in so fair a path. Not con-j I5i. 6. In. 
tented with rendering themselves independent with respect to dependence, 
their functions,— by the aid of the court of Rome, they have ^°''*°'***"' 
even attempted to withdraw themselves entirely, and in every 
respect, from all subjection to the political authority. There 
have been times when an ecclesiastic could not be brought 
before a secular tribunal for any crime whatsoever, f The 

* Tantam sacerdos pnestat regi, quan- f The congregation of Immnnities 
torn homo bestias. StanislaM Orichoviut, has decided that the cognisance of 
— Vide Tribbechov. Exerc 1, ad Baron, causes against eoclesiajstics, even for 
AnttaLSeet2,etThoma9.Nat,ad,LancelL the crime of high treason, exclusively 

U3 



71 



OP PIETY AND RELIGION. 



BOOK I. 

CHAP. xn. 



canon law declares expressly, It is indecent for laymen to 
judge a churchman.* The popes Paul III,, Pius V., and 
Urban VIIL, excommunicated all lay judges who should 
presume to undertake the trial of ecclesiastics. Even the 
bishops of France have not been afraid to say on several 
occasions, that they did not depend on any temporal prince ; 
and, in 1656, the general assembly of the French clergy 
had the assurance to use the following expressions — " The 
decree of council having been read^^was disapproved by the 
assembly y because it leaves the king judge over the bishops^ 
and seems to subject their immunities to his judges "'\ There 
are decrees of the popes that excommunicate whoever im- 
prisons a bishop. According to the principles of the church 
of Rome, a prince has not the power of punishing an eccle- 
siastic with death, though a rebel or a malefactor ; — he must 
first apply to the ecclesiastical power ; and the latter will, if 
it thinks proper, deliver up the culprit to the secular arm, 
after having degraded him.J History aflfords us a thousand 



belongs to the spiritnal court : — " Cog- 
nitio canssB contra ecclesia«tico8, etiam 
pro delicto laBses mf^estatis, feri debet 
a jndice ecolesiastico." Ricci Synopt, 
Decret, tt RetoL S. Congreg, Immunit. 
p. 105. — ^A constltation of pope Ur- 
ban VI. pronounces those soToreigns 
or magistrates guiltj of sacrilege, who 
shall banish an ecclesiastic from their 
territories, and declares them to haye 
ip*o facto incurred the sentence of ex- 
communication. Cap, IL De Fora. 
Oompet in VII. To this immunity 
may be added the indulgence shown 
by the ecclesiastical tribunals to the 
clergy, on whom they neyer inflicted 
any but slight punishments, even for 
the most atrocious crimes. The dread- 
ful disorders that arose from this cause, 
at length produced their own remedy 
in France, where the clergy were at 
length subjected to the temporal juris- 
diction for all transgressions that are in- 
jurious to society. See Papox Arrets 
NotahUa, book i. tit y. act 34. 

* Indecorum est laicos homines viros 
ecclesiasticos judicare. Can. in nona 
aetiont 22, xvi. q. 7. 

f See ike Statement of Facts on the 
Sifttem of Independence of Biehops. 

{ In tiie year 1725, a parish priest> 
of the canton of Lucerne, having re- 
fused to appear before iht supreme 
council, was, for his contumacy, ba- 
nished from the canton. Hereupon 
his diocesan, the bishop of Constance, 
had the assurance to write tO'the coun- 
cil that they bad infringed the ecclesi- 
astical immunities— that **\t is unlaw- 
144 



fol to subject the ministers of God to 
the decisions of the temporal pover." 
In these pretensions he was sanctioned 
by the approbation of the pope's nun- 
cio and the court of Rome. But the 
council of Lucerne firmly supported the 
rights of sovereignty, and, without en- 
gaging with the bishop in a controversy 
which would have been derogatory to 
their dignity, answered him — "Your 
lordship quotes various passages from 
the writings of the fathers, which we, 
on our side, might also quote in our 
own favour, if it were necessary, or if 
there was question of deciding the con- 
test by dint of quotation. But let your 
lordship rest assured that we have a 
right to summon before us a priest, our 
natural subject, who encroaches on our 
prerogatives — to point out to him his 
error — to exhort him to a reform of 
his conduct — and, in consequence of 
his obstinate disobedience, after repeat- 
ed citations, to banish him from our 
dominions. We have not the least 
doubt that this right belongs to us; 
and we are determined to defend it. 
And indeed it ought not to be proposed 
to any sovereign to appear as party in 
a contest with a refractory subject like 
him — to refer the cause to the decision 
of a third party, whoever he be— and 
run the risk of being condemned to 
tolerate in the state a person of such 
character, with what dignity soever he 
might be invested," Ac. The bishop 
of Constance had proceeded so for as 
to assert, in his letter to the canton, 
dated December 18th, 1725, that 



OP PIBTY AKD BELiaiON. 72 

examples of bishops who remained unptinished, or were but book i. 
slightly chastised, for crimes for which nobles of the highest °°^^' "'' 
rank forfeited their lives. John de Braganza, king of Portu- 
gal, justly inflicted the penalty of death on those noblemen 
who had conspired his destruction : but he did not dare to 

Sut to death the archbishop of Braga, the author of that 
etestable plot.* 

For an entire body of men, numerous and powerful, to 
stand beyond the reach of the public authority, and be de- 
pendent on a foreign court, is an entire subyersion of order 
in the republic, and a manifest diminution of the sovereignty. 
This is a mortal stab given to society, whose very essence it 
is, that every citizen should be subject to the public autho- 
rity. Indeed the immunity which , the clergy arrogate to 
themselves in this respect, is so inimical to the natural and 
necessary rights of a nation, that the king himself has not 
the power of granting it. But churchmen will tell us they 
derive this immunity from God himself ; but till they have 
furnished some proof of their pretensions, let us adhere to 
this certain principle, that God desires the safety of states, 
and- not that which will only be productive of disorder and 
destruction to them. 

The same immunity is claimed for the possessions of the § 152. 
church. The state might, no doubt, exempt those posses- ^- imm«ni- 
sions from every species of tax at a time when they were*"^^/^,®^^"®^ 
scarcely sufficient for the support of the ecclesiastics ; but, 
for that favour, these men ought to be indebted to the public 
authority alone, which has always a right to revoke it, when- 
ever the welfare of the state makes it necessary. It being 
one of the fundamental and essential laws of every society, 
that, in case of necessity, the wealth of all the members ought [ 73 ] 
to contribute proportionally to the common necessities — the 
prince himself cannot, of his own authority, grant a total 
exemption to a very numerous and rich body, without being 
guilty of extreme injustice to the rest of his subjects, on 
whom, in consequence of that exemption, the whole weight 
of the burden will fall. 

The possessions of the church are so far from being en- 
titled to an exemption on account of their being consecrated 
to God, that, on the contrary, it is for that very reason they 
ought to be taken the first for the use and safety of the state. 
For nothing is more agreeable to the common Father of man- 
kind than to save a state from ruin. God himself having no 
need of anything, the consecration of wealth to him is but a 
dedication of it to such uses as shall be agreeable to him. 
Besides, a great part of the revenues of the church, by the 

'^ehnrobineii, as soon as they have fore." Memorial on the Dispute hetween 
reeeired holy orders, ceased to be nata* the Pope and the Otznton of Lueeme, 
ral sabjocts, and are thus released from p. 65. 
the bondage in which they lived be- * Beyolutions of Portugal. 

19 N 145 



73 



OP PIETY AND RELIGION. 



BOOK I. 

CHAP, xri, 



§153. 
8. EzGom- 
munication 
of men in 
office. 



[74] 



J154. 

9. And of 

sovereigns 

themselyes. 



confession of the clergy themselves, is destined for the poor. 
- When the state is in necessity, it is doubtless the first and 
principal pauper, and the most worthy of assistance. We 
may extend this principle even to the most common cases, 
and safely assert that to supply a part of the current ex- 
penses of the state from the revenues of the church, and thus 
take so much from the weight of the people's burden, is really 
giving a part of those revenues to the poor, according to their 
original destination. But it is really contrary to religion and 
the intentions of the founders to waste in pomp, luxury, and 
epicurism, those revenues that ought to be consecrated to the 
relief of the poor.* 

Not satisfied, however, with rendering themselves inde- 
pendent, the ecclesiastics undertook to brmg mankind under 
their dominion ; and indeed they had reason to despise the 
stupid mortals who suffered them to proceed in their plan. 
Excommunication was a formidable weapon among ignorant 
and superstitious men, who neither knew how to keep it 
within its proper bounds, nor to distinguish between the use 
and the abuse of it. Hence arose disorders which have pre- 
vailed in some protestant countries. Churchmen have pre- 
sumed, by their own authority alone, to excommunicate men 
in high employments, magistrates whose functions were daily 
useful to society — and have boldly asserted that those officers 
of the state, being struck with the thunders of the church, 
could no longer discharge the duties of their posts. What a 
perversion of order and reason ! What ! shall not a nation 
be allowed to intrust its affairs, its happiness, its repose and 
safety, to the hands of those whom it deems the most skilful 
and the most worthy of that trust ? Shall the power of a 
churchman, whenever he pleases, deprive the state of its 
wisest conductors, of its firmest supports, and rob the prince 
of his most faithful servants ? So absurd a pretension has 
been condemned by princes, and even bv prelates, respect- 
able for their character and judgment. We read in the 17l8t 
letter of Ives de Chartres, to the Archbishop of Sens, that the 
royal capitularies (conformably to the thirteenth canon of the 
twelfth council of Toledo, held in the year 681) enjoined the 
priests to admit to their conversation all those whom the 
king's majesty had received into favour, or entertained at 
his table, though they had been excommunicated by them, 
or by others, in order that the church might not appear to 
reject or condemn those whom the king was pleased to employ 
in his service.* 

The excommunications pronounced against the sovereigns 
themselves, and accompanied with the absolution of their 
subjects from their oaths of allegiance, put the finishing 
stroke to this enormous abuse ; and it is almost incredible 



IM 



• Bee LttttTB on the Pretentintu of the Clergy, 



OP PIETY AND RKLiaiON. 74 



that nations should have suffered such odious procedures, book i. 
We have slightly touched on this subject in §§ 146 and 146. ^^^' ^"' 
The thirteenth century gives striking instances of it. Otho 
IV^ for endeavouring to oblige several provinces of Italy to 
submit to the laws of the empire, was excommunicated and 
deprived of the empire by Innocent III. and his subjects 
absolved from their oath of allegiance. Finally, this unfor- 
tanate emperor, being abandoned by the princes, was obliged 
to resign the crown to Frederic II. John, king of England, 
endeavouring to maintain the rights of his kingdom in the 
election of an archbishop of Canterbury, found himself ex- 
posed to the. audacious enterprises of the same pope.. Inno- 
cent excommunicated the king — laid the whole kingdom under 
an interdict — had the presumption to declare John unworthy 
of the throne, and to absolve his subjects from their oath of 
fidelity ; he stirred up the clergy against him — excited his 
subjects to rebel — solicited the king of France to take up 
arms to dethrone him — publishing, at the same time, a cru- 
sade against him, as he would have done against the Sara- 
cens. The king of England at first appeared determined to 
defend himself with vigour ; but soon losing courage, he suf- 
fered himself to be brought to such an excess of infamy, as 
to resign his kingdoms into the hands of the pope's legate, 
to receive them back from him, and hold them as a fief of 
the church, on condition of paying tribute.* 

The popes were not the only persons guilty of such enor- 
mities : there have also been councils who bore a part in 
them. That of Lyons, summoned by Innocent IV., in the 
year 1245, had the audacity to cite the emperor Frederic II. 
to appear before them in order to exculpate himself from the 
charges brought against him — threatening him with the 
thunders of the church if he failed to do it. That great 
prince did not give himself much trouble about so irregular 
a proceeding. He said— "that the pope aimed at rendering 
himself both a judge and a sovereign ; but that, from all an- 
tiquity, the emperors themselves had called councils, where 
the popes and prelates rendered to them, as to their sove- 
reigns, the respect and obedience that was their due."t The [ 75 ] 
emperor, however, thinking it necessary to yield a little to 
the superstition of the times, condescended to send ambassa- 
dors to the council, to defend his cause ; but this did not 
prevent the pope &om excommunicating him, and declaring 
him deprived of the crown. Frederic, like a man of a su- 
perior genius, laughed at the empty thunders of the Vatican, 
and proved himself able to preserve the crown in spite of the 
election of Henry, Landgrave of Thuringia, whom the eccle- 
siastical electors, and many bishops, had presumed to declare 

♦ Matthew Paris. — Twretin, Cfompend, f Hsifls's Hiuiory of the Emfnre, book 
HUt. BetUtet, Seeul. ziiL IL efaap. ZTi 

U7 



T5 OP PIETY AND RBLiaiON. 



BOOK I. king of the Romans — ^but who obtained little more by that 
^"^^- ^"- election, than the ridiculous title of king of the priests, 

I should never have done, were I to accumulate examples ; 
but those I have already quoted are but too many for the 
honour of humanity. It is an humiliating sight to behold 
the excess of folly to which superstition had reduced the 
nations of Europe in those unhappy times.* 
^ 1j3. By means of the same spiritual arms, the clergy drew 

10. The every thing to themselves, usurped the authority of the tri- 
!'^^'^«'^^*'^" bunals, and disturbed the course of justice. They claimed 
thhir to^ a right to take cognisance of all causes on account of stUj of 
thoinseiven, wktch (says Inuoccnt Ill-t) every man of sense must know 
and disturb- that the cognisance belongs to our ministry. In the year 
i>7u8tice*^^'' 1329, the prelates of France had the assurance to tell King 
justice, pj^jjjp ^Q Valois, that, to prevent causes of any kind from 
being brought before the ecclesiastical courts, was depriving 
the church of all its rights, omnia ecclesiarum jura toUere.X 
And accordingly, it was their aim to have to themselves the 
decision of all disputes. They boldly opposed the civil au- 
thority, an(f made themselves feared by proceeding in the 
way of excommunication. It even happened sometimes, that 
as dioceses were not always confined to the extent of the 
t 76 ] political territory, a bishop would summon foreigners before 
his tribunal, for causes purely civil, and take upon him to 
decide them, in manifest violation of the rights of nations. 
To such a height had the disorder arisen tlu-ee or four cen- 
turies ago, that our wise ancestors thought themselves obliged 
to take serious measures to put a stop to it, and stipulated, 
in their treaties, that none of the confederates should be sum- 

* Sovereigns were somotimeB found, ebould acknowledge him as king, or 
who, without considering future con- perform towards him anj of the duties 
sequences, favoured the papal en- of a subject He then offered Arragon 
oroaohments when they were likely and Catalonia to the Count de Valois, 
to prove advantageous to their own second son of Philip the Bold, on con- 
intcrests. Thus, Louis YIII., king dition that he and his successors should 
of France, wishing to invade the terri- acknowledge themselves vassals of the 
tories of the Count of Toulouse, under holy see, take an oath of fealty to the 
pretence of making war on the Albi- pope, and pay him a yearly tribute, 
genses, requested of the pope, among The king of France assembled thi" 
other things, ** that he would issue a barons and prelates of his kingdom, to 
bull declaring that the two Raymonds, deliberate on the pope's offer, and they 
father and son, together with all their advised him to accept of it. ** Strange 
adherents, associates, and allies, had blindness of kings and their counsel- 
been and were deprived of aU their lors!" exclaims, with good reason, a 
possessions." Vklly*8 ffist. of France, modem historian ; " they did not pcr- 
vol. iv. p. 33. Of a similar nature to ceive, that, by thus accepting king- 
the preceding is the foUowing remark- doms from the hands of the pope, they 
able fact: — ^Pope Martin IV. ezoom- strengthened and established his pre- 
municatcd Peter, king of Airagosy tensions to the right of deposing them- 
dcclared that he had forfeited his king- selves." Vellt'b History of Francff 
dom, aU his lands, and even the regal vol. vi. p. 190. 
dignity, and pronounced his subjects f In cap. Novit. de Judieie, 
absolved from their oath of aUe^anee. % See Leibnitii Codex, Jurie Ocnt, 
He even exoomrannicated aU who DiplomaU DipL LXYIL { 9. 
148 



OP PIETY AND RELIGION. 76 

moned before spiritual courts^ for money debts, since every book i. 
one ought to be contented with the ordinary modes of justice ^°^^' ^"' 
that were observed in the country,^ " We find in history, that 
the Swiss on many occasions repressed the encroachments of 
the bishops and their judges. 

Over every aflFair of life they extended their authority, 
under pretence that conscience was concerned. They obliged 
new-married husbands to purchase permission to lie with their 
wives the first three nights after marriage, f 

This burlesque invention leads us to remark another abuse, ? i^e. 
manifestly contrary to the rules of a wise policy, and to the J^- Money 
duty a nation owes to herself ; I mean the immense sums r^j^, 
which bulls, dispensations, &c., annually drew to Rome, from 
all the countries in communion with her. How much might 
be said on the scandalous trade of indulgences ! but it at last 
became ruinous to the court of Rome, which, by endeavour- 
ing to gain too much, suffered irreparable losses. 

Finally, that independent authority intrusted to ecclesi- j 157. 
astics, who were often incapable of understanding the true 12. Laws 
maxims of government, or too careless to take the trouble of *°* cugtoma 
studying them, and whose minds were wholly occupied by a^^^^^^^j^ro 
visionary fanaticism, by empty speculations, and notions of of atatos. 
a chimerical and overstrained purity, — that authority, I say, 
produced, under the pretence of sanctity, laws and customs 
that were pernicious to the state. Some of these we have 
noticed; but a very remarkable instance is mentioned by 
Grotius. "In the ancient Greek church," says he, '''was. 
long observed a canon, by which those who had killed an 
enemy in any war whatsoever were excommunicated for three 
years :*'t a fine reward decreed for the heroes who defended 
their country, instead of the crowns and triumphs with which 
agan Rome had been accustomed to honour them ! Pagan 

me became mistress of the world ; she adorned her bravest 
warriors with crowns. The empire, having embraced Chris- 
tianity, soon became a prey to barbarians ; her subjects, by 
defending her, incurred the penalty of a degrading excom- 
munication. By devoting themselves to an idle life, they 
thought themselves pursuing the path to heaven, and actually 
found themselves in the high road to riches and greatness. 

* Ihidm Alliance of Zarich with the upon ; they would hare made no great 

eastona of Uri, Schweite, and Under- profit of any other. 
widd, dated May 1, 1351, | 7. % De Jvre Belli et Paeia, lib. ii. cap. 

-|- See A Regulation of Parliament in xxiv. He quotes Ba»il ad Amphiloch, 

tm arret of March 19, 1409. Spirit of x. 13. Zonareat in Niceph, Phoc yol. 

LavM. These (says Montesquieu) were ilL 
tlie rery best nights they could pitch 

]c2 U9 



77 OF JUSTICE AND POLITY. 



BOOK I. 

CRAP. xm. 



CHAP. xm. 

OP JUSTICE AND POLITY. 

^158. Anft- NEXT to the care of religion, one of the principal duties 
tion onght ^f ^ nation relates to justice. They ought to employ their 
juatioe^ utmost attention in causing it to prevail in the state, and to 
reign. take proper measures for having it dispensed to every one in 
the most certain, the most speedy, and the least burdensome 
manner. This obligation flows from the object proposed by 
uniting in civil society, and from the social, compact itself. 
We have seen (§ 15), that men have bound themselves by the 
engagements of society, and consented to divest themselves, 
in its favour, of a part of their natural liberty, only with a 
view of peaceably enjoying what belongs to them, and ob- 
taining justice with certainty. The nation would therefore 
neglect her duty to herself, and deceive the individuals, if 
she did not seriously endeavour to make the strictest justice 
prevail. This attention she owes to her own happiness, re- 
pose, and prosperity. Confusion, disorder, and despondency 
will soon arise in a state, when the citizens are not sure of 
easily and speedily obtaining justice in all their disputes; 
without this, the civil virtues will become extinguished, and 
the society weakened. 
; 16». To There are two methods of making justice flourish — good 
esubiish j^ws, and the attention of the superiors to see them executed, 
good lawg. j^ treating of the constitution of a state (Chap. III.), we 
have already shown that a nation ought to establish just and 
wise laws, and have also pointed out the reasons why we can- 
not here enter into the particulars of those laws. If men 
were always equally just, equitable, and enlightened, the 
laws of nature would doubtless be sufficient for society. But 
ignorance, the illusions of self-love, and the violence of the 
passions, too often render these sacred laws inefiectual. And 
we see, in consequence, that all well-governed nations have 
perceived the necessity of enacting positive laws. There is 
a necessity for general and formal regulations, that each may 
clearly know his own rights, without being misled by self- 
deception. Sometimes even it is necessary to deviate from 
natural equity, in order to prevent abuses and frauds, and to 
accommodate ourselves to circumstances ; and, since the sen* 
sation of duty has frequently so little influence on the heart 
of man, a penal sanction becomes necessary, to give the laws 
their full efficacy. Thus is the law of nature converted into 
• civil law.* It would be dangerous to commit the interests 
of the citizens to the mere discretion of those who are to dis- 



• Sm a dissertation on this sabjeo^ in the Loinr Philatophi^ue, p. 71. 
150 



OF JUSTICB AND POLITY. 77 

peme justice. The legislator should assist the understanding book l 
of the judges, force their prejudices and inclinations, and sub- -^5f£:-^5: 
due their will, by simple, fixed, and certain rules. These, 
again, are the civil laws. [ ''^S ] 

The best laws are useless, if they be not observed. The } i«o. To 
nation ought then to take pains to support them, and to cause «^<>"« 
them to be respected and punctually executed : with this view ^^ 
she cannot adopt measures too just, too extensive, or too ef- 
fectual ; for hence, in a great degree, depend her happiness, 
glory, and tranquillity. 

We have already observed (§ 41) that the sovereign, who ; i6i. 
represents a nation and is invested with its authority, is also Funetiona 
charsred with its duties. An attention to make justice flourish aj^ duties 
in the state must then be one of the principal functions of the j^ this re- 
prince ; and nothing can be more worthy of the sovereign speet 
majesty. The emperor Justinian thus begins his book of the 
Institutes : Imperatoriam majestatem non solum armis deco- 
ratamj sed etiam legibics opartet esse armatamy ut lUrumque 
tempuSj et bellorum et pacisy recte possit gubemari. The de- 
gree of power intrusted by the nation to the head of the state, 
is then the rule of his duties and his functions in the admin- 
istration of justice. As the nation may either reserve the 
legislative power to itself, or intrust it to a select body, — it 
has also a right, if it thinks proper, to establish a supreme 
tribunal to judge of all disputes, independently of the prince. 
But the conductor of the state must naturally have a consid- 
erable share in legislation, and it may even be entirely intrusted 
to him. In this last case, it is he who must establish salutary 
laws, dictated by wisdom and equity : but in all cases, he 
should be the guardian of the law ; he should 4^atch over those 
who are invested with authority, and confine each individual 
within the bounds of duty. 

The executive power naturally belongs to the sovereign, 1 162. How 
— ^to every conductor of a people: he is supposed to be m-^**"*® 
vested with it, in its fullest extent, when the fundamental ?^^^"* 
laws do not restrict it. When the laws are established, it 
is the prince's province to have them put in execution. To 
support them with vigour, and to make a just application of 
them to all cases that present themselves, is what we call 
rendering justice. And this is the duty of the sovereign, 
who is naturally the judge of his people. We have seen the 
chiefs of some small states perform these functions themselves : 
but this custom becomes inconvenient, and even impossible in 
a ^eat kingdom. 

The best and safest method of distributing justice is by J i«3. He 
establishing judges, distinguished by their integrity and®"«^*^ 
knowledge, to take cognisance of all the disputes that niayj)^^^^^''' 
arise between the citizens. It is impossible for the prince to and upright 
take upon himself this painful task : he cannot spare su£Scient judges. 
time either for the thorough investigation of all causes, or 

151 



78 OF JUSTICE AND POLITY. 

BOOK I. even for the acquisition of tlie knowledge necessary to decide 
CHAP, xm. them. As the sovereign cannot personally discharge all the 
functions of government, he should, with a just discernment, 
reserve to himself such as he can successfully perform, and 
are of most importance, — ^intrusting the others to officers and 
magistrates who shall execute them under his authority* 
There is no inconvenience in trusting the decision of a law- 
[ 79 ] suit to a body of prudent, lionest, and enlightened men : — on 
the contrary it is the best mode the prince can possibly adopt ; 
and he fully acquits himself of the duty he owes to his people 
in this particular, when he gives them judges adorned with, 
all the qualities suitable to ministers of justice: he has then 
nothing more to do but to watch over their conduct, in order 
that they may not neglect their duty. 
{ 164. Tho The establishment of courts of justice is particularly ne- 
ordinaiy cessary for the decision of all fiscal causes, — ^that is to say, 
A^id d ^^^ *^^ disputes that may arise between the subjects on the 
^^ahiQ *" one hand, and, on the other, the persons who exert the pro- 
oMuee ro- fitable prerogatives of the prince. It would be very unbe- 
lating to the coming, and highly improper for a prince, to take upon him 
roTenue. ^o give judgment in his own cause : — he cannot be too much 
on his guard against the illusions of interest and self-love ; 
and even though he were capable of resisting their influence, 
still he ought not to expose his character to the rash judg- 
ments of the multitude. These important reasons ought even 
to prevent his submitting the decision of causes in which he 
is concerned, to the ministers and counsellors particularly at- 
tached to his person. In all well-regulated states, in coun- 
tries that are really states, and not the dominions of a despot, 
the ordinary tribunals decide all causes in which the sovereign 
is a party, with as much freedom as those between private 
persons. 
2 165. The end of all trials at law is justly to determine the dis- 

Thew ought putes that arise between the citizens. If, therefore, suits are 
Wi^od*^ prosecuted before an inferior judge, who examines all the cir- 
premo "" cumstances and proofs relating to them, it is very proper, 
ooarts of that, for the greater safety, the party condemned should be 
jufltioe allowed to appeal to a superior tribunal, where the sentence 
wherem ^f ^j^^ former judge may be examined, and reversed, if it ap- 
shooid be P^^ ^^ ^® iU-founded. But it is necessary that this supreme 
finally de> tribunal should have the authority of pronouncing a definitive 
termined. sentence without appeal : otherwise the whole proceeding will 
be vain, and the dispute can never be determined. 

The custom of having recourse to the prince himself, by 
laying a complaint at the foot of the throne, when the cause 
has been finally determined by a supreme court, appears to be 
subject to very great inconveniences. It is more easy to deceive 
the prince by specious reasons, than a number of magistrates 
well skilled in the knowledge of the laws ; and experience too 
plainly shows what powerful resources are derived from favour 

152 



OF JUSTICE AN© POLITY. 79 

and intrigue in the courts of kings. If this practice he autho- book z. 
rized by the laws of the state, the prince ought always to fear ^^^^' ^™' 
that these complaints are only formed with a view of protract- 
ing a suit, and procrastinating a just condemnation. A just 
and wise sovereign will not admit them without great caution ; 
and if he reverses the sentence that is complained of, he ought 
not to try the cause himself, but submit it to the examination 
of another tribunal, as is the practice in France. The ruin- 
ous length of these proceedings authorizes us to say that it is [ 80 ] 
more convenient and advantageous to the state, to establish a 
sovereign tribunal, whose definitive decrees should not be sub- 
ject to a reversal even by the prince himself. It is suflScient 
for the security of justice that the sovereign keep a watchful 
eye over the judges and magistrates, in the same manner as 
he is bound to watch all the other officers in the state, — and 
that he have power to call to an account and to punish such 
as are guilty of prevarication. 

When once this sovereign tribunal is established, the prince ? 166. The 
cannot meddle with its decrees; and, in general, he is abso-P""®* 
lutely obliged to preserve and maintain the forms of justice, p^^^ ^^j^ 
Every attempt to violate them is an assumption of arbitrary fonns of 
power, to which it cannot be presumed that any nation could Justice. 
ever have intended to subject itself. 

When those forms are defective, it is the business of the 
legislator to reform them. This being done or procured in a 
manner agreeable to the fundamental laws, will be one of the 
most salutary benefits the sovereign can bestow upon his peo- 
ple. To preserve the citizens from the danger of ruining 
themselves in defending their rights, — to repress and destroy 
that monster, chicanery, — ^will be an action more glorious in 
the eyes of the wise man, than all the exploits of a conqueror. 

Justice is administered in the name of the sovereign ; the J i6r. The 
prince relies on the judgment of the courts, and, with good v^inw 
reason, looks upon their decisions as sound law and justice. **°^^*J^,, 

_. 'i^i 1^1 •! •• support tho 

His part m this branch of the government is then to maintain authority of 
the authority of the judges, and to cause their sentences to the judges. 
be executed ; without which they would be vain and delusive ; 
for justice would not be rendered to the citizens. 

There is another kind of justice named attributive or distri- i ifis. Of 
butive, which in general consists in treating everyone accord- ^^^f^'***^® 
ing to his deserts. This virtue ought to regulate the distribu-"JJ'^^^®.g^_ 
tion of public employments, honours, and rewards in a state. buUon of 
It is, in the first place, a* duty the nation owes to herself, to employ- 
encourage good citizens, to excite every one to virtue by hon-™«"*" *"** 
ours and rewards, and to intrust with employments such per-"^"^* 
sons only as are capable of properly discharging them. In 
the next place, it is a duty the nation owes to individuals, to 
show herself duly attentive to reward and honour merit. Al- 
though a sovereign has the power of distributing his favours 
and employments to whomsoever he pleases, and nobody has a 

20 158 



son, 



80 OF JUSTICB AND POLITY. 

BOOK I. perfect right to any post or dignity, — ^yet a man who by in- 
—--"'- tense application has qualified lumself to become useful to his 
country, and he who has rendered some signal seryice to the 
state, may justly complain if the prince overlooks them, in 
order to advance useless men without merit. This is treatins 
them with an ingratitude that is wholly unjustifiable, and 
adapted only to extinguish emulation. There is hardly any 
fault that in the course of time can become more prejudicial 
to a state : it introduces into it a general relaxation ; and its 
public aflfairs, being managed by incompetent hands, cannot 
[ 81 ] fail to be attended with ill-success. A powerful state may 
support itself for some time by its own weight ; but at length 
it falls into decay ; and this is perhaps one of the principal 
causes of those revolutions observable in great empires. The 
sovereign is attentive to the choice of those he employs, while 
he feels himself obliged to watch over his own safety, and to 
be on his guard : but when once he thinks himself elevated to 
such a pitch of greatness and power as leaves him nothing to 
fear, he follows his own caprice, and all public offices are dis- 
tributed by favour. 
; 169. Pan- The punishment of trangressors commonly belongs to dis- 
^hmont of tributive justice, of which it is really a breach ; since good 
"*^*" order requires that malefactors should be made to suffer the 
punishments they have deserved. But, if we would clearly 
establish this on its true foundations, we must recur to first 
^f^^-^h* P'^^cip^^s. The right of punishing, which in a state of nature 
of pimS- * belongs to each individual, is founded on the right of personal 
ing. safety. Every man has a right to preserve himself from in- 

jury, and by force to provide for his own security against 
those who unjustly attack him. For this purpose he may, 
when injured, infilct a punishment on the aggressor, as well 
with the view of putting it out of his power to injure him for 
the future, or of reforming him, as of restraining, by his ex- 
ample, all those who might be tempted to imitate nim. Now, 
when men unite in society, — as the society is thenceforward 
charged with the duty of providing for the safety of its mem- 
bers, the individuals all resign to it their private right of pun- 
ishing. To the whole body, therefore, it belongs to avenge 
private injuries, while it protects the citizens at large. And 
as it is a moral person, capable also of being injured, it has a 
right to provide for its own safety, by punishing those who 
trespass against it ; — that is to say, it has a right to punish 
public delinquents. Hence arises the right of the sword, which 
belongs to a nation, or to its conductor. When the society use 
it against another nation, they make war ; when they exert it 
in punishing an individual, they exercise vindictive justice. 
Two things are to be considered in this part of government, 
— the laws, and their execution. 
{ 170. Cri. It would be dangerous to leave the punishment of transgres- 
minai Uw8. ^j^ entirely to the discretion of those who are invested with 

164 



OP JUSTICE AN© POUTT. 81 

authority. The passions might interfere in a business which ^oo^ i* 
ought to be regulated only by justice and wisdom. The pun- ^°^' ^ ~ 
ismnent pre-ordained for an evil action, lays a more effectual 
restraint on the wicked than a vague fear, in which they may 
deceive themselves. In short, the people, who are commonly 
moved at the sight of a suffering wretch, are better convinced 
of the justice of his punishment, when it is inflicted by the laws 
themselves. Every well-governed state ought then to have its 
laws for the punishment of criminals. It belongs to the legisla- 
tive power, whatever that be, to establish them with justice and 
wisdom. But this is not a proper place for giving a general 
theory of them : we shall therefore only say that each nation 
ought, in this as in every other instance, to choose such laws 
as may best suit her peculiar circumstances. 

We shall only make one observation, which is connected ? i7i. i>e- 
with the subject in hand, and relates to the degree of punish- ?^°^ P™' 
ment. From the foundation even of the right of punishing, "r go* -i 
and from the lawful end of inflicting penalties, arises the ne- ^ -* 
cessity of keeping them within just bounds. Since they are 
designed to procure the safety of the state and of the citizens, 
they ought never to be extended beyond what that safety re- 
quires. To say that any punishment is just since the trans- 
gressor knew before-hand the penalty he was about to incur, 
is using a barbarous language, repugnant to humanity, and to 
the law of nature, which forbids our doing any ill to others, 
unless they lay us under the necessity of inflicting it in our 
own defence and for our own security. Whenever then a 
particular crime is not much to be feared in society, as when 
the opportunities of committing it are very rare, or when the 
subjects are not inclined to it, too rigorous punishments ought 
not to be used to suppress it. Attention ought also to be paid 
to the nature of the crime ; and the punishment should be 
proportioned to the degree of injury done to the public tran- 
quillity and the safety of society, and the wickedness it sup* 
poses in the criminal. 

These maxims are not only dictated by justice and equity, 
but also as forcibly recommended by prudence and the art 
of government. Experience shows us that the imagination 
becomes familiarized to objects which are frequently present- 
ed to it. If, therefore, terrible punishments are multiplied, 
the people will become daily less affected by them, and at 
length contract, like the Japanese, a savage and ferocious 
character : — these bloody spectacles will then no longer pro- 
duce the effect designed ; for they will cease to terrify the 
wicked. It is with these examples as with honours : — a prince 
who multiplies titles and distinctions to excess, soon depre- 
ciates them, and makes an injudicious use of one of the most 
powerful and convenient springs of government. When we 
recollect the practice of the ancient Komans with respect to 
criminals-— when we reflect on their scrupulous attention to 

155 



82 OJ JUSTICE AND POLITT. 

BOOK I. spare the blood of the citizens, — ^we cannot fail to be stimck 
CHAP, xm. ^^ geeing with how little' ceremony it is now-a-days shed in the 
generality of states. Was then the Roman republic but ill 
governed ? Does better order and greater security reign among 
us? — It is not so much the cruelty of the punishments, as 
a strict punctuality in enforcing the penal code, that keeps 
mankind within the bounds of duty : and if simple robbery is 
punished with death, what further punishment is reserved to 
check the hand of the murderer ? 
2 172. Ex- The execution of the laws belongs to the conductor of the 
ooution of state : he is intrusted with the care of it, and is indispensably 
the Uw8. obliged to discharge it with wisdom. The prince then is to 
see that the criminal laws be put in execution ; but he is not 
to attempt in his own person to try the guilty. Besides the 
[ 83 ] reasons we have already alleged in treating of civil causes, and 
which are of still greater weight in regard to those of a crimi- 
nal nature — to appear in the character of a judge pronouncing 
sentence on a wretched criminal, would ill become the majesty 
of the sovereign, who ought in every thing to appear as the 
father of his people. It is a very wise maxim commonly re- 
ceived in France, that the prince ought to reserve to himself 
all matters of favour, and leave it to the magistrates to execute 
the rigour of justice. But then justice ought to be exercised 
in his name, and under his authority. A good prince will 
keep a watchful eye over the conduct of the magistrates ; he 
will oblige them to observe scrupulously the established forms, 
and will himself take care never to break through them. 
Every sovereign who neglects or violates the forms of justice 
in the prosecution of criminals, makes large strides towards 
tyranny ; and the liberty of the citizens is at an end when once 
they cease to be certain that they cannot be condemned, except 
in pursuance of the laws, according to the established forms, 
and by their ordinary judges. The custom of committing the 
trial of the accused party to commissioners chosen at the plea- 
sure of the court, was the tyrannical invention of some minis- 
ters who abused the authority of their master. By this irregu- 
lar and odious procedure, a famous minister always succeed- 
ed in destroying his enemies. A good prince will never give 
his consent to such a proceeding, if he has sufficient discern- 
ment to foresee the dreadful abuse his ministers may make of 
it. If the prince ought not to pass sentence himself — ^for the 
same reason, he ought not to aggravate the sentence passed 
by the judges. 
i 173. Right The very nature of government requires that the executor 
of pardon- ^f ^j^^ ^'^yifs should havo the power of dispensing with them 
^^' when this may be done without injury to any person, and in 

certain particular cases where the welfare of the state requires 
an exception. Hence the right of granting pardons is one of 
the attributes of sovereignty. But, in his whole conduct, in 
his severity as well as his mercy, the sovereign ought to have 

156 



OF JUSTICE AND POLITY. 88 

no Other object in. view than the greater advantage of soci- book i. 
ety. A wise prince knows how to reconcile justice with -Sn^^iZIH: 
clemency — the care of the public safety with that pity which 
ia due to the unfortunate. 

The internal police consists in the attention of the prince ? 174. in- 
and magistrates to preserve every thing in order. Wise re- ^^^ po- 
gulations ought to prescribe whatever will best contribute to ^'®^* 
the public safety, utility, and convenience ; and those who are 
invested with authority cannot be too attentive to enforce them. 
By a wise police, the sovereign accustoms the people to order 
and obedience, and preserves peace, tranquillity, and concord 
among the citizens. The ma»strates of Holland are said to 
possess extraordinary talents in this respect : — ^a better police 
prevails in their cities, and even their establishments in the 
Indies, than in any other places in the known world. [ 84 ] 

Laws and the authority of the magistrates having been sub- ? 175. Duel, 
stituted in the room of private war, the conductors of a nation ^' '^^^^ 
ought not to suffer individuals to attempt to do themselves jus- ?5^ * * 
tice, when they can have recourse to the magistrates. DuelUng 
— that species of combat, in which the parties engage on account 
of a private quarrel — ^is a manifest disorder, repugnant to the 
ends of civil society. This frenzy was unknown to the an- 
cient Greeks and Romans, who raised to such a height the 
glory of their arms : we received it from barbarous nations 
who knew no other law but the sword. Louis XIV. deserves 
the greatest praise for his endeavours to abolish this savage 
custom. 

But why was not that prince made sensible that the most § ire. 
severe punishments were incapable of curing the rage for du- Moans of 
elling ? They did not reach the source of the evil ; and ^"^^ gto^this 
a ridiculous prejudice had persuaded all the nobility and gen- disorder. " 
tlemen of the army, that a man who wears a sword is bound 
in honour to avenge with his own hand the least injury he has 
received ; this is the principle on which it is proper to proceed. 
We must destroy this prejudice, or restrain it by a motive of 
the same nature. While a nobleman, by obeying the law, 
Bliall be regarded by his equals as a coward and as a man dis- 
honoured — while an ofBcer in the same case shall be forced to 
quit the service — can you hinder his fighting by threatening 
him with death ? On the contrary, he will place a part of his 
bravery in doubly exposing his life in order to wash away the 
affront. And, certainly, while the prejudice subsists, while a 
nobleman or an oflScer cannot act in opposition to it, without 
embittering the rest of his life, I do not know whether we can 
justly punish him who is forced to submit to his tyranny, or 
whether he be very guilty with respect to morality. That 

(54) Afl to the legal view of the of- Aid. 462 ; and Barn's J. 26 ed. tit- 
f^nce of duelling in England, see 6 East '' Duelling." 
Hep, 260 ; 2 East Rep. 581 ; 2 Barn. & 

157 



84 OF JUSTICE AND POLITY. 

BOOK I. worldly honour, be it as false and chimerical as jon please, is 
CHAP. zm. ^ j^Q^ ^ substantial and necessary possession, since without 
it he can neither lire with his equals, nor exercise a profession 
that is often his only resource. When, therefore, any insolent 
fellow would unjustly ravish from him that chimera so esteem- 
ed and so necessary, why may he not defend it as he would his 
life and property against a robber ? As the state does not 
permit an indiyidual to pursue with arms in his hand the usur- 
per of his property, because .he may obtain justice from the 
magistrate— so, if the sovereign will not allow him to draw his 
sword against the man from whom he has received an insult, 
he ought necessarily to take such measures that the patience 
and obedience of the citizen who has been insulted shall not 
prove prejudicial to him. Society cannot deprive man of his 
natural right of making war against an aggressor, without fur- 
nishing him with some other means of securing himself from 
the evil his enemy would do him. On all Uiose occasions 
where the public authority cannot lend us its assistance, we 
resume our original and natural right of self-defence. Thus 
a traveller may, without hesitation, kill the robber who at- 
[ 85 ] tacks him on the highway ; because it would, at that moment, 
be in vain for him to implore the protection of the laws and 
of the magistratOi Thus a chaste vir^n would be praised for 
taking away the life of a brutal ravisher who attempted to 
force ner to his desires. 

Till men have got rid of this Gothic idea, that honour obliges 
them, even in contempt of the laws, to avenge their per- 
sonal injuries with their own hands, the most effectual method 
of putting a stop to the effects of tlus prejuflice would perhaps 
be to make a total distinction between the offended and the 
aggressor — ^to pardon the former without difficulty, when it 
appears that his honour has been really attacked — and to ex- 
ercise justice without mercy on the party who has committed 
the outrage. And as to those who draw the sword for trifles 
and punctilios, for little piques, or railleries in which honour 
is not concerned, I would have them severely punished. By 
this means a restraint would be put on those peevish and in- 
solent folks who often reduce even the moderate men to a 
necessity of chastising them. Every one would be on his 
guard, to avoid being considered as the aggressor ; and with 
a view to gain the advantage of engaging in duel (if un- 
avoidable) without incurring the penalties of the law, both 
parties would curb their passions; by which means the 
quarrel would fall of itself, and be attended with no con* 
sequences. It frequently happens that a bully is at bottom 
a coward ; he gives himself haughty airs, and offers insult, in 
hopes that the rigour of the law will oblige people to put up 
with his insolence. And what is the consequence 7 — ^A man 
of spirit will run every risk, rather than submit to be insult- 
ed : the aggressor dares not recede : and a combat ensues, 

15S 



OP JUSTICE AND poLrry. 85 

which would not have taken place, if the latter could have »oo« «• 
once imagined that there was nothing to prevent the other ^^^' ^^' 
from chastising him for his presumption — ^the offended per- 
son being acquitted by the same law that condemns the ag- 
gressor. 

To this first law, whose efficacy would, I doubt not, be soon 
proved by experience, it would be proper to add the following 
regulations : — 1. Since it is an established custom that the 
nobility and military men should appear armed, even in time 
of peace, care should be taken to enforce a rigid observance of 
the laws which allow the privilege of wearing swords to these 
two orders of men only. 2. It would be proper to establish 
a particular court, to determine, in a summary manner, all 
affairs of honour between persons of these two orders. The 
marshals' court in France is in possession of this power ; and 
it might be invested with it in a more formal manner and to 
a greater extent. The governors of provinces and strong 
places, with their general officers — ^the colonels and captains of 
each regiment — ^might, in this particular, act as deputies to 
the marshals. These courts, each in his own department, 
should alone confer the right of wearing a sword. Every no- 
bleman at sixteen or eighteen years of age, and every soldier 
at his entrance into the regiment, should be obliged to appear 
before the court to receive the sword. 3. On its being there [ 86 ] 
delivered to him, he should be informed that it is intrusted to 
him only for the defence of his country ; and care might be 
taken to inspire him with true ideas of honour. 4. It appears 
to me of great importance to establish, for different cases, pun- 
ishments of a different nature. Whoever should so far forget 
himself, as, either by word or deed, to insult a man who wears 
a sword, might be degraded from the rank of nobility, deprived 
of the privilege of carrying arms, and subjected to corporal 
punishment— even the punishment of death, according to the 
grossness of the insult : and, as I before observed, no favour 
should be shown to the offender in case a duel was the conse- 
quence, while at the same time the other party should stand 
fully acquitted. Those who fight on slight occasions, I would 
not have condemned to death, unless in such cases where the 
author of the quarrel — he, I mean, who carried it so far as to 
draw his sword, or to give the challenge — has killed his ad- 
versary. People hope to escape punishment when it is too 
severe ; and, besides, a capital punishment in such cases is not 
considered as infamous. But let them be ignominiously de- 
graded from the rank of nobility and the use of arms, and for 
ever deprived of the right of wearing a sword, without the least 
hope of pardon : this would be the most proper method to re- 
strain men of spirit, provided that due care was taken to make 
a distinction between different offenders, according to the de- 
gree of the offence. As to persons below the rank of nobility, 
and who do not belong to the army, their quarrels should oe 

159 



86 THIRD OBJECT OF A GOOD GOVERNMENT, DBFBNCB. 



CHAP. XIII. 



BOOK I. left to the cognisance of the ordinary courts, which in case of 
"""• bloodshed should punish the offenders according to the com- 
mon laws against violence and murder. It should be the same 
with respect to any quarrel that might arise between a com- 
moner and a man entitled to carry arms : it is the business of 
the ordinary magistrate to preserve order and peace between 
those two classes of men, who cannot have any points of hon- 
our to settle the one with the other. To protect the people 
against the violence of those who wear the sword, and to 
punish the former severely if they should dare to insult the 
latter, should further be, as it is at present, the business of 
the magistrate. 

I am sanguine enough to believe that these regulations, and 
this method of proceeding, if strictly adhered to, would extir- 
pate that monster, duelling, which the most severe laws have 
been unable to restrain. They go to the source of the evil, by 
preventing quarrels, and oppose a lively sensation of true and 
real honour to that false and punctilious honour which occa- 
sions the spilling of so much blood. It would be worthy a 
great monarch to make a trial of it : its success would immor- 
talize his name : and by the bare attempt he would merit the 
love and gratitude of his people. 



[ 87 ] CHAP. XIV. 

CHAP. XIV. THE THIRD OBJECT OF A GOOD GOVERNMENT, — ^TO FORTIFY 
ITSELF AGAINST EXTERNAL ATTACKS. 

§ 177. A na- \YE havc treated at large of what relates to the felicity of 
tion o^^t a nation : the subject is equally copious and complicated. 
Bei/ftgalnat ^^^ ^^ ^^^ proceed to a third division of the duties which a 
external at- nation owes to itself, — a third object of good government. One 
tacks. of the ends of political society is to defend itself with its com- 

bined strength against all external insult or violence (§ 15). 
If the society is not in a condition to repulse an aggressor, it 
is very imperfect, — it is unequal to the principal object of its 
destination, and cannot long subsist. The nation ought to 
put itself in such a state as to be able to repel and humble an 
unjust enemy : this is an important duty, which the care of 
its own perfection, and even of its preservation, imposes both 
on the state and its conductor. 
2 178. Na- It is its strength alone that can enable a nation to repulse 
tionai all aggressors, to secure its rights, and render itself every- 
strcngth. ^jjere respectable. It is called upon by every possible motive 
to neglect no circumstance that can tend to place it in this 
happy situation. The strength of a state consists in three 
things, — ^the number of the citizens, their military virtues, and 

160 



THJXD OBJECT OF A GOOD GOYBKKMENT, BBFBNCE. 87 



their riches. Under this last article ve may comprehend fort- book i^ 
resseSy artillery, arms, horses, ammunition, and, in general,- 



CHAP. XIT. 



all that immense apparatus at present necessary in war, since 
they can all be procured with money. 

To increase the number of the citizens as far as it is pos- i i^^- i»»- 
9ible or convenient^ is then one of the first objects that claim **'*"? ^^ 
the attentive care of the state or its conductor : and this will be {^5 " 
successfully effected by complying with the obligation to procure 
the country a plenty of the necessaries of life^ — by enabling 
the people. to support their families with the fruits of their 
labour^ — by giving proper directions that the poorer classes, 
and especially the husbandmen, be not harassed and oppressed 
by the levying of taxes, — by governing with mildness, and 
in a manner which, instead of disgusting and dispersing the 
present subjects of the state, shall rather attract new ones, — 
and, finally, by encouraging marriage, after the example 
of the Romans. That nation, so attentive to every thing 
capable of increasing and supporting their power, made • 
wise laws against celibacy (as we have already observed in 
§ 149), and granted privileges and exemptions to married 
men, particularly to those who had numerous families : laws 
that were equally wise and just, since a citizen who rears [ 88 ] 
subjects for the state has a right to expect more favour from 
it than the man who chooses to live for himself alone.* 

Every thing tending to depopulate a country is a defect in 
a state not overstocked with inhabitants. We have already 
spoken of convents and the celibacy of priests. It is strange 
that establishments so directly repugnant to the duties of a 
man and citizen, as well as to the advantage and safety of 
society, should have found such favour, and that princes, in- 
stead of opposing them, as it was their duty to do, should have 
protected and enriched them. A system of policy, that dex- 
trously took advantage of superstition to extend its own power, 
led princes and subjects astray, caused them to mistake their 
real duties, and blinded sovereigns even with respect to their 
own interest. Experience seems at length to have opened the 
eyes of nations and their conductors ; the pope himself (let us 
mention it to tho honour of Benedict XIV.) endeavors grad« 

(55) This subject, and the necessity and in fayour of celibacy. "Videtur 

for endeavouring to discourage the in- esse matrimonii et stapri differentia, 

crease of population, have, in recent (says Tertullian): sed ntrobique est 

years, occasioned the publication of communicatio.-f' £r^, inqnis, et primas 

nnmerons works. See them commented nuptios damnas? Neo immerito, qno- 

apon, I Chitty's Commercial Law, 1, 2, niam et ipsse constant ex eo quod est 

Ac. stuprum." Exhort. Gastit. And thus 

* It is impossible to suppress the Jerome: '' Hanc tantum esse dififerenti- 

emotions of indignation that arise on am inter uxorem et scortum, quod 

reading what some of the fathers of the tolerabilius sit uni esse prostiUitam 

chnreh have written against marriage, quam plaribns." 



•\ ObntamincAio, — ^Bdit. 
21 o2 161 



88 THIRD OBJECT OF A GOOD GOVERNMENT, DEFENCE. 

BOOK T. nail J to reform so palpable an abuse ; by his orders, none of 
CHAP. XIV. j^jg dominions are any longer permitted to take the vow of 
celibacy before they are twenty-five years of age. That wise 
pontiff gives the sovereigns of his commnnion a salutary ex- 
ample ; he invites them to attend at length to the safety of 
their states, — ^to narrow at least, if they cannot entirely close 
up, the avenues of that sink that drains their dominions. Take 
a view of Germany ; and there, in countries which are in all 
other respects upon an equal footing, you will see the protest* 
ant states twice as populous as the catholic ones. Compare 
the desert state of Spain with that of England, teeming with 
inhabitants: survey many fine provinces, even in France, 
destitute of hands to till the soil ; and then tell me, whether 
the many thousands of both sexes, who are now locked up in 
convents, would not serve God and their country infinitely 
better by peopling those fertile plains with useful cultivators? 
It is true, indeed, that the catholic cantons of Switzerland are 
nevertheless very populous : but this is owing to a profound 
peace, and the nature of the government, wnich abundantly 
repair the losses occasioned by convents. Liberty is able to 
remedy the greatest evils ; it is the soul of a state, and was 
with great justice called by the Romans alma Libertas. 

1 180. Va- A cowardly and undisciplined multitude are incapable of re- 
lour. pulsing a warlike enemy : the stren^h of the state consists 

less in the number than the military virtues of its citizens. Va- 
lour, that heroic virtue which makes us undauntedly encounter 
[ 89 ] danger in defence of our country, is the firmest support of the 
state : it renders it formidable to its enemies, and often even 
saves it the trouble of defending itself. A state whose repu- 
tation in this respect is once well established, will be seldom 
attacked, if it does not provoke other states by its enterprises. 
For above two centuries the Swiss have enjoyed a profound 
peace, while the din of arms resounded all around them, and 
the rest of Europe was desolated by the ravages of war. Na- 
ture gives the foundation of valour ; but various causes may 
animate it, weaken it, and even destroy it. A nation ought 
then to seek after and cultivate a virtue so useful ; and a 
prudent sovereign will take all possible measures to inspire 
his subjects with it : — his wisdom will point out to him the 
means. It is this generous flame that animates the French 
nobility : fired with a love of glory and of their country, they 
fly to battle, and cheerfully spill their blood in the neld of 
honour. To what an extent would they not carry their con- 
quests, if that kingdom were surrounded by nations less war- 
like ! The Briton, generous and intrepid, resembles a lion 
in combat ; and, in general, the nations of Europe surpass in 
bravery all the other people upon earth. 

1 181. But valour alone is not always successful in war : constant 
otber miU- succcss Can Only be obtained by an assemblage of all the mi- 
tary rirtaes. li^ary virtues. History shows us the importance of ability 

162 



THIBD OBJECT OF A GOOD GOVERNMENT, DEFENCE. 89 

in the commanders, of military discipline, frugality, bodily book i. 
strength, dexterity, and being inured to fatigue and labour. ^"^^' ^'^' 
These are so many distinct branches which a nation ought 
carefully to cultivate. It wa« the assemblage of all these 
that raised so high the glory of the Romans, and rendered 
them the masters of the world. It were a mistake to suppose 
that valour alone produced those illustrious exploits of the 
ancient Swiss — ^the victories of Morgarten, Sempach, Laupen, 
Morat, and many others. The Swiss not only fought with 
intrepidity : they studied the art of war, — they inured them- 
selves to its toils, — they accustomed themselves to the prac- 
tice of all its manoeuvres, — and their very love of liberty made 
them submit to a discipline which could alone secure to them 
that treasure, and save their country. Their troops were no 
less celebrated for their discipline than their bravery. Me- 
zeray, after having given an account of the behaviour of the 
Swiss at the battle of Dreux, adds these remarkable words : 
"in the opinion of all the oflScers of both sides who were pre- 
sent, the Swiss, in that battle, under every trial, against in- 
fantry and cavalry, against French and against Germans, 
gained the palm for military discipline, and acquired the re- 
putation of being the best infantry in the world."* 

Finally, the wealth of a nation constitutes a considerable j i82. 
part of its power, especially in modern times, when war re- Kichee. 
quires such immense expenses. It is not simply in the re- 
venues of the sovereign, or the public treasure, that the riches 
of a nation consist : its opulence is also rated from the wealth [ 90 ] 
of individuals. We commonly call a nation rich, when it 
contains a great number of citizens in easy and affluent cir- 
cumstances. The wealth of private persons really increases 
the strength of the nation ; since they are capable of contri- 
buting large sums towards supplying the necessities of the 
state, and that, in a case of extremity, the sovereign may even 
employ all the riches of his subjects in the defence, and for 
the safety of the state, in virtue of the supreme command 
with which he is invested, as we shall hereafter show. The 
nation, then, ought to endeavour to acquire those public and 
private riches that are of such use to it : and this is a new 
reason for encouraging a commerce with other nations, which 
is the source from whence they flow, — and a new motive for 
the sovereign to keep a watchful ^ye over the different 
branches of foreign trade carried on by his subjects, in order 
that he may preserve and protect the profitable branches, 
and cut off those that occasion the exportation of gold and 
silver. 

It is requisite that the state should possess an income pro- ; i83. Pub- 
portionate to its necessary expenditures. That income mayii«"venueB 
De supplied by various means, — ^by lands reserved for that ""^ **^*''' 

♦ Hittory of France, vol. ii. p. 888. 

163 



90 OP THE GLORY OP A NATION. 

BOOK I. purpose, by contributions, taxes of different kinds, &c. — ^but 
CHAP. XIV. ^f j.jjjg gubject we shall treat in another place. 
J 184. The We have here summed up the principal ingredients that 
nation ought constitute that strength which a nation ought to augment and 
not to m- improye. Can it be necessary to add the observation, that 
power by ii- *"is desirable object is not to be pursued by any other me- 
legai means, thods than such as are just and innocent ? A laudable end 
is not sufficient to sanctify the means ; for these ought to be 
in their own nature lawful. The law of nature cannot con- 
tradict itself: if it forbids an action as unjust or dishonest in 
its own nature, it can never permit it for any purpose what- 
ever. And therefore in those cases where that object, in 
itself so valuable and so praiseworthy, cannot be attained 
without employing unlawful means, it ought to be considered 
as unattainable, and consequently be relinquished. Thus, \h c 
shall show, in treating of the just causes of war, that a nation 
is not allowed to attack another with a view to aggrandize 
itself by subduing and giving law to the latter. This is just 
the same as if a private person should attempt to enrich him- 
self by seizing his neighbour's property. 
§ 185. Pow- The power of a nation is relative, and ought to be measured 
^u" ^^^ '* ^y ^^^^ ^^ ^^^ neighbours, or of all the nations from whom it 
has any thing to fear. The state is sufficiently powerful when 
it is capable of causing itself to be respected, and of repelling 
whoever would attack it. It may be placed in this happy 
situation, either by keeping up its own strength equal or even 
superior to that of its neighbours, or by preventing their 
rising to a predominant and formidable power. But we can- 
not show here in what cases and by what means a state may 
[ 91 ] justly set bounds to the power of another. It is necessary, 
first, to explain the duties of a nation towards others, in order 
to combine them afterwards with its duties towards itself. 
For the present, we shall only observe, that a nation, while 
it obeys the dictates of prudence and wise policy in this in- 
stance, ought never to lose sight of the maxims of justice. 



^'' '^ CHAP. XV. 



OP THE GLORY OP A NATION. 



If 180. Ad- THE glory of a nation is intimately connected with its 
^J"^?^^' °^ power, and indeed forms a considerable part of it. It is this 
^^^^' brilliant advantage that procures it the esteem of other na- 
tions, and renders it respectable to its neighbours. A nation 
whose reputation is well established — especially one whose 
glory is illustrious — is courted by all sovereigns ; they desire 
its friendship, and are afraid of offending it. Its friends, and 

164 



OF THE GLORY OF A NATION. 91 



tbose who wish to become so, favour its enterprises ; and ^^^ ^• 
those who envy its prosperity are afraid to show their ill-will. ■ — '- 

It is, then, of great advantage to a nation to establish its j isr. Duty 
reputation and glory ; hence, this becomes one of the most of the na^ 
important of the duties it owes to itself. True glory consists ****°' 
in the favourable opinion of men of wisdom and discern- 
ment ; it is acquired by the virtues or good qualities of the 
head and the heart, and by great actions, which are the 
fruits of those virtues. A nation may have a two-fold claim How true 
to it ; — ^first, by what it does in its national character, by the gio^y Js ac- 
conduct of those who have the administration of its affairs, ^i"""®^- 
and are invested with its authority and government; and, 
secondly, by the merit of the individuals of whom the nation 
is composed. 

A prince, a sovereign of whatever kind, being bound to 1 188. Duty 
exert every effort for the good of the nation, is doubtless o^.*^« 
obliged to extend its glory as far as lies in his power. We P"°®®* 
have seen that his duty is to labour after the perfection of 
the state, and of the people who are subject to him ; by that 
means he will make them merit a good reputation and glory. 
He ought always to have this object in view, in every thing 
he undertakes, and in the use he makes of his power. Let 
him, in all his actions, display justice, moderation, and great- 
ness of soul, and he will thus acquire for himself and his peo- 
ple a name respected by the universe, and not less useful than 
glorious. The glory of Henry IV. saved France. In the 
deplorable state in which he found affairs, his virtues gave 
animation to the loyal part of his subjects, and encouraged 
foreign nations to lend him their assistance, and to enter into 
an alliance with him against the ambitious Spaniards. In his 
circumstances, a weak prince of little estimation would have 
been abandoned by all the world ; people would have been 
afraid of being involved in his ruin. 

Besides the virtues which constitute the glory of princes as [ 92 ] 
well as of private persons, there is a dignity and decorum 
that particularly belong to the supreme rank, and which a 
sovereign ought to observe with the greatest care. He can- 
not neglect them without degrading himself, and casting a 
stain upon the state. Every thing that emanates from the 
throne ought to bear the character of purity, nobleness, and 
greatness. What an idea do we conceive of a people, when 
we see their sovereign display, in his public acts, a meanness 
of sentiment by which a private person would think himself 
disgraces ! All the majesty of the nation resides in the per- 
son of the prince ; what, then*, must become of it, if he pros- 
titutes it, or suffers it to be prostituted by those who speak 
and act in his name ? The minister who puts into his mas- 
ter's mouth a language unworthy of him, deserves to be 
turned out of office with every mark of ignominy. 

The reputation of individuals is, by a common and natural 

165 



92 OF THE GLORY OP A NATION. 



BOOK I. mode of speaking and thinking, made to reflect on the whole 
^^L nation. In general, we attribute a virtue or a vice to a peo- 



CHAP. XV. 



^/^ ??*^ pie, when that vice or that virtue is frequently observed among 
aena.^ " them. We say that a nation is warlike, when it produces a 
great number of brave warriors ; that it is learned, when 
there are many learned men among the citizens ; and that it 
excels in the arts, when it produces many able artists. On 
the other hand, we call it cowardly, lazy, or stupid, when 
men of those characters are more numerous there than else- 
where. The citizens, being obliged to labour with all their 
might to promote the welfare and advantage of their country, 
not only owe to themselves the care of deserving a good re- 
putation, but they also owe it to the nation, whose glory is so 
liable to be influenced by theirs. Bacon, Newton, Descartes, 
Leibnitz, and Bernouilli, have each done honour to his native 
country, and essentially benefited it by the glory he acquired. 
Great ministers, and great generals — an Oxenstiern, a Tu- 
renne, a Marlborough, a Ruyter — serve their country in a 
double capacity, both by their actions and by their glory. 
On the other hand, the fear of reflecting a disgrace on his 
country will furnish the good citizen with a new motive for 
abstaining from every dishonourable action. And the prince 
ought not to suffer his subjects to give themselves up to vices 
capable of bringing infamy on the nation, or even of simply 
tarnishing the brightness of its glory ; he has a right to sup- 
press and to punish scandalous enormities, which do a real 
injury to the state, 
g 190. Ex- The example of the Swiss is very capable of showing how 
ample of advautagcous glory may prove to a nation. (66) The high 
t msa. reputation they have acquired for their valour, and which 
they still gloriously support, has preserved them in peace for 
above two centuries, and rendered all the powers of Europe 
desirous of their assistance. Louis XI., while dauphin, was 
witness of the prodigies of valour they performed at the 
[ 98 ] battle of St. Jacques, near Basle, and he immediately formed 
the design of closely attaching to his interest so intrepid a 
nation.* The twelve hundred gallant heroes, who on this 
occasion attacked an army of between fifty and sixty thou- 
sand veteran troops, first defeated the vanguard of the Ar- 
magnacs, which was eighteen thousand strong ; afterwarda, 
rashly engaging the main body of the army, they perished 
almost to a man, without being able to complete their victory.f 
But, besides their terrifying the enemy, and preserving 



(56) ThU observation properly refers considered by their countrymen as 

to ante, J 124, p. 54. oow&rds that had preferred a life of 

* See the Memoirs of Comines. shame to the honour of dying for their 

f Of this small army, " eleven hun- country." Hittory of the Uelcttic Cbn- 

dred and fifty-eight were counted dead federacyf hy M. de WattevilUf vol. i. p. 

on the field, and thirty-two wounded. 250. — Tschndi, p. 425. 

Twelve men only escaped, who were 
166 



OP THE PROTECTION 80UOHT BY A NATION* 98 

Switzerland from a ruinous invasion, they rendered her essen- book i. 
tial service by the glory they acquired for her arms. A re- ^^^' ^' 
putation for an inviolable fidelity is no less advantageous to 
that nation ; and they have at all times been jealous of pre* 
serving it. The canton of Zug punished With death that un- 
worthy soldier who betrayed the confidence of the duke of 
Milan by discovering that prince to the French, when, to 
escape them, he had disguised himself in the habit of the 
Swiss, and placed himself in their ranks as they were march- 
ing out of Novara.* 

Since the glory of a nation is a real and substantial ad- i i^i- At- 
vantage, she has a right to defend it, as well as her other ad- *^^° J^*^^ 
vantages. He who attacks her glory does her an injury ; and naUon^is do- 
she has a right to exact of him, even by force of arms, a just ing her an 
reparation. We cannot, then, condemn those measures, some- inji»y. 
times taken by sovereigns to support or avenge the dignity 
of their crown. They are equally just and necessary. If, 
when they do not proceed from too lofty pretensions, we at- 
tribute them to a vain pride, we only betray the grossest igno- 
rance of the art of reigning : and despise one of the firmest 
supports of the greatness and safety of a state. 



CHAP. XVI. 



CHAP. XVI. 

OP THE PROTECTION SOUGHT BY A NATION, AND ITS VOLUN- 
TARY SUBMISSION TO A FOREIGN POWER. 

When a nation is not capable of preserving herself from 1 192. Pro- 
insult and oppression, she may procure the protection of a *««*»<>»• 
more powerful state. If she obtains this by only engaging 
to perform certain articles, as to pay a tribute in return for 
the safety obtained, — to furnish her protector with troops, — 
and to embark in all his wars as a joint concern, — ^but still [ 94 ] 
reserving to herself the right of administering her own govern- 
ment at pleasure, — ^it is a simple treaty of protection, that 
does not all derogate from her sovereignty, and difiers not 
from the ordinary treaties of alliance, otherwise than as it 
creates a difference in the dignity of the contracting parties. 

But this matter is sometimes carried still farther : and, al- i ^^^' ^^' 
though a nation is under an obligation to preserve with the ^"P^^^r eub- 

o II. 1 I'll ..,.« mission of 

utmost care the liberty and independence it inherits from one nation 
nature, yet when it has not sufficient strength of itself, and to another, 
feels itself unable to resist its enemies, it may lawfully sub- 
ject itself to a more powerful nation on certain conditions 

* Vogel's Historical and political France and the 'Thirteen Cantonsj p. 
Treatise of the Alliances between 75, 76. 

167 



94 OF THE PROTECTION SOUGHT BY A NATION. 

BOOK I. agreed to by both parties: and the compact or treaty of sub* 
CBAP. xYi. mission will thenceforward be the measiire and rule of the 
rights of each. For, since the people who enter into subjeo- 
tion resign a right which naturally belongs to them, and trans- 
fer it to the other nation, they are perfectly at liberty to an- 
nex what conditions they please to this transfer ; and the 
other party, by accepting their submission on this footing, 
engages to observe religiously all the clauses of the treaty. 
i 194. Se- Tlus submission may be varied to infinity, according to the 
verai kinds ^in of the contracting parties : it may either leave the infe- 
of Bubmis- j.j^j. Qa|;iQn a paj.^ q{ the sovereignty, restraining it only in cer- 
tain respects, or it may totally abolish it, so that the superior 
nation shall become the sovereign of the other, — or, finally, 
the lesser nation may be incorporated with the greater, in 
order thenceforward to form with it but one and the same 
state : and then the citizens of the former will have the same 
privileges as those with whom they are united. The Roman 
history famishes examples of each of these three kinds of sub- 
mission, — 1. The allies of the Roman people, such as the in- 
habitants of Latium were for a long time, who, in several re- 
spects, depended on Rome, but, in all others, were governed 
according to their own laws, and by their own magistrates ; — 

2. The countries reduced to Roman provinces, as Capua, 
whose inhabitants submitted absolutely to the Romans; — * 

3. The nations to which Rome granted the freedom of the 
city. In after times the emperors granted that privilege to 
all the nations subject to the empire, and thus transformed 
all their subjects into citizens. 

§ 195, Right In the case of a real subjection to a foreign power, the 
of the citi- citizens who do not approve this change are not obliged to 
the nation Submit to it : — they ought to be allowed to sell their efiects 
Bubmita to a and retire elsewhere. For, my having entered into a society 
foreign pow- docs not oblige me to follow its fate, when it dissolves itself 
*''• in order to submit to a foreign dominion. I submitted to the 

society as it then was, to live in that society as the member 
of a sovereign state, and not in another : I am bound to obey 
it, while it remains a political society : but, when it divests 
[ 95 ] itself of that quality in order to receive its laws from another 
state, it breaks the bond of union between its members, and 
releases them from their obligations. 
^ 196. When a nation has placed itself under the protection of 

These com- another that is more powerful, or has even entered into sub- 
pacts annul- jection to it with a view to receiving its protection, — if the 
faUure o^^ latter does not effectually protect the other in case of need, 
protection, it is manifest, that, by failing in its engagements, it loses all 
the rights it had acquired by the convention, and that the 
other, being disengaged from the obligation it had contracted, 

* Itaque populum Cainpanum, ur- patrea conscriptt, popaliqno Romani 

bemque Gapaam, agros, delabra deilm, ditionem dedimos. LIVT| book tu. 

divina humanaqne omniai in vestnun, c. 31. 
168 



OF THE PROTECTION SOUGHT BT A NATION. 



95 



re-enters into the possession of all its rights, and recovers its book i. 
independence, or its liberty. It is to be observed that this chap, xvi. 
takes place even in crises where the protector does not fail m 
his engagements through the want of good faith, but merely 
through inability. For, the weaker nation having submitted 
only for the sake of obtaining protection, — if the other proves 
unable to fulfil that essential condition, the compact is dis- 
solved ; — the weaker resumes its rights, and may, if it thinks 
proper, have recourse to a more effectual protection.* Thus, 
the dukes of Austria, who had acquired a right of protection, 
and in some sort a sovereignty over the city of Lucerne, being 
unwilling or unable to protect it effectually, that city con- 
cluded an alliance with the three first cantons ; and the dukes 
having carried their complaint to the emperor, the inhabit- 
ants of Lucerne replied, " that they had used the natural 
right common to all men, by which every one is permitted to 
endeavour to procure his own safety when he is abandoned by 
those who are obliged to grant him assistance, "f 

The law is the same with respect to both the contracting § 197. Or 
parties : if the party protected do not fulfil their engage- by the iufi- 
ments with fidelity, the protector is discharged from his ; he ^^ ^^^^ 
may afterwards refuse his protection, and declare the treaty tectcd. 
broken, in case the situation of his affairs renders such a step 
advisable. 

In virtue of the same principle which discharges one of the § 198« And 
contracting parties when the other fails in his engagements, ^^ ^l ®"", 
if the more powerful nation should assume a greater autho- ^f ^^ p^o. 
rity over the weaker one than the treaty of protection or sub- tcctor. 
mission allows, the latter may consider the treaty as broken, 
and provide for its safety according to its own discretion. If 
it were otherwise, the inferior nation would lose by a conven- 
tion which it had only formed with a view to its safety ; and 
if it were still bound by its engagements when its protector 
abuses them and openly violates his own, the treaty would, 
to the weaker party, prove a downright deception. However, [ 96 ] 
as some people maintain, that, in this case, the inferior nation 
has only the right of resistance and of imploring foreign aid, 
— and particularly as the weak ieannot take too many pre- 
cautions against the powerful, who are skilful in colouring 
over their enterprises, — the safest way is to insert in this kind 
of treaty a clause declaring it null and void whenever the 

• We speak here of a nation that t See The History of Suntzerland. 
has rendered itself subject to another, The United Provinces, having heen 
and not of one that has incorporated obliged to rely wholly on their own 
itself with another state, so as to con- efforts in defending themselves against 
stitute a part of it. The latter stands Spain, would no longer acknowledge 
in the same predicament with all th** any dependence on the empire from 
other citizens. Of this case we shall which they had received no assistance. 
treat in the following cliapter. Grotivs, HUt. of the Troubles in the Low 

Countries, b. xvi. p. 627. 
22 P 169 



96 HOW A NATION M\Y SEPARATE ITSELF. 

BOOK I. superior power shall arrogate to itself any rights not expresslj 

CHAP. XVI. granted by the treaty. 

^ 199. How But if the nation that is protected, or that has placed 

the right of itself in subjectiou on certain conditions, does not resist the 

the nation encroachmonts of that power from which it has sought sup- 
protected 18 •A* 1 •• 1 •«•• 

lost by its P^^^^ — ^^ 1^ makes no opposition to them — if it preserves a 
silence. profound silencc, when it might and ought to speak — ^its pa- 
tient acquiescence becomes in length of time a tacit consent 
that legitimates the rights of the usurper. There would be 
no stability in the affairs of men, and especially in those of 
nations, if long possession, accompanied by the silence of the 
persons concerned, did not produce a degree of right. But 
it must be observed, that silence, in order to show tacit con- 
sent, ought to be voluntary. If the inferior nation proves 
that violence and fear prevented its giving testimonies of its 
opposition, nothing can be concluded from its silence, which 
therefore gives no right to the usurper. 



CHAP. XVII. 

(HAP. xyn. HOW A NATION MAY SEPARATE ITSELF FROM THE STATE OF 
WHICH IT IS A MEMBER, OR RENOUNCE ITS ALLEGIANCE 
TO ITS SOVEREIGN WHEN IT IS NOT PROTECTED. 

\ 200. Dif- WE have said that an independent nation, which, without 
forence be- becoming a member of another state, has voluntarily rendered 
twoen the jtsclf dependent on, or subject to it, in order to obtain pro- 
an? thoseln ^^ctiou, is released from its engagements as soon as that pro- 
thcpreced- tcction fails, cven though the failure happen through the 
ing chapter, inability of the protector. But we are not to conclude that it 
is precisely the same case with every nation that cannot ob- 
tain speedy and effectual protection from its natural sovereign 
or the state of which it is a member. The two cases are very 
different. In the former, a free nation becomes subject to 
another state, — not to partake of all the other's advantages, 
and form with it an absolute union of interests (for, if the 
more powerful state were willing to confer so great a favour, 
the weaker one would be incorporated, not subjected), — ^but to 
obtain protection alone by the sacrifice of its liberty, without 
expecting any other return. When, therefore, the sole and 
indispensable condition of its subjection is (from what cause 
soever) not complied with, it is free from its engagement-s ; 
and its duty towards itself obliges it to take fresh methods to 
provide for its own security. But the several members of one 
individual state, as they all equally participate in the advan- 
tages it procures, are bound uniformly to support it : they 
have entered into mutual engagements to continue united 

170 



HOW A NATION MAY SEPARATE ITSELF. 97 

with each other, and to have on all occasions but one common book i. 
cause. If those who are menaced or attacked might sepa- chap, xyh. 
rate themselves from the others, in order to avoid a present 
danger, every state would soon be dismembered and destroyed. 
It is, then, essentially necessary for the safety of society, and 
even for the welfare of all its members, that each part should 
with all its might resist a common enemy, rather than sepa- 
rate from the others ; and this is consequently one of the 
necessary conditions of the political association. The natural 
subjects of a prince are bound to him without any other 
reserve than the observation of the fundamental laws ; — ^it is 
their duty to remain faithful to him, as it is his, on the other 
hand, to take care to govern them well : both parties have 
but one common interest ; the people and the prince together 
constitute but one complete whole, one and the same society. 
It is, then, an essential and necessary condition of the poli- 
tical society, that the subjects remain united to their prince 
as far as in their power. (67) 

When, therefore, a city or a province is threatened or actu- § 201. Du- 
ally attacked, it must not, for the sake of escaping the danger, ty ^^^^ 
separate itself from the state of which it is a member, or ™®™J^" °^ 
abandon its natural prmce, even when the state or the princCgubjectBof a 
is unable to give it immediate and effectual assistance. Its prince, who 
duty, its political engagements, oblige it to make the greatest "^ in dan- 
efforts, in order to maintain itself in its present state. If it ^^' 
is overcome by force, necessity, that irresistible law, frees it 
from its former engagements, and gives it a right to treat 
with the conqueror, in order to obtain the best terms possible. 
If it must either submit to him or perish, who can doubt but 
that it may and even ought to prefer the former alternative ? 
Modern usage is conformable to this decision : — a city sub- 
mits to the enemy when it cannot expect safety from a vigor- 
ous resistance ; it takes an oath of fidelity to him ; and its 
sovereign lays the blame on fortune alone. 

The state is obliged to defend and preserve all its mem- § 202. Their 
bers (§17) ; and the prince owes the same assistance to his"**!* ^^^^ 
subjects. If, therefore, the state or the prince refuses or neg- ^^^J^^^^ 
lects to succour a body of people who are exposed to immi- 
nent danger, the latter, being thus abandoned, become per- 
fectly free to provide for their own safety and preservation 
in whatever manner they find most convenient, without pay- 
ing the least regard to those who, by abandoning them, have 
been the first to fail in their duty. The country of Zug, being 
attacked by the Swiss in 1362, sent for succour to the duke 
of Austria, its sovereign ; but that prince, being engaged in 



(57) Nemo potest ezure patriaro. is absolutely conquered by a foreign 
This is part ofnatural allegiance, which power, and the parent state has 
no individual can shake off until the acknowledged the eeverance. See 
part of the country where he resides 1 Chittyi Commercial Law, 129. 

171 



97 ESTABLISHMENT OF A NATION 

BOOK I. discourse concerning his hawks, at the time when the depu- 
CHAP. xYii. |.j^g appeared before him, would scarcely condescend to hear 
them. Thus abandoned, the people of Zug entered into the 
[ 98 ] Helvetic confederacy.* The city of Zurich had been in the 
same situation the year before. Being attacked by a band 
of rebellious citizens who were supported by the neighbouring 
nobility, and the house of Austria, it made application to the 
head of the empire : but Charles IV., who was then emperor, 
declared to its deputies that he could not defend it ; — upon 
which Zurich secured its safety by an alliance with the Swiss-f 
The same reason has authorized the Swiss, in general, to 
separate themselves entirely from the empire, which never 
protected them in any emergency ; they had not owned its 
authority for a long time before their independence was ac- 
knowledged by the emperor and the whole Germanic body, 
at the treaty of Westphalia. 



CHAP XVIII. 

CHAP, xvm . OF THE ESTABLISHMENT OF A NATION IN A COUNTRY. 

i 203. Pos- HITHERTO we have considered the nation merely with 
session of a respect to itself, without any regard to the country it pos- 
TnaJOoj^^ sesses. Let us now see it established in a country which 
becomes its own property and habitation. The earth belongs 
to mankind in general ; destined by the Creator to be their 
common habitation, and to supply them with food, they all 
possess a natural right to inhabit it, and to derive from it 
whatever is necessary for their subsistence, and suitable to 
their wants. But when the human race became extremely 
multiplied, the earth was no longer capable of furnishing 
spontaneously, and without culture, sufficient support for its 
inhabitants ; neither could it have received proper cultivation 
from wandering tribes of men continuing to possess it in 
common. It therefore became necessary that those tribes 
should fix themselves somewhere, and appropriate to them- 
selves portions of land, in order that they might, without 
being disturbed in their labour, or disappointed of the fruits 
of their industry, apply themselves to render those lands fer- 
tile, and thence derive their subsistence. Such must have 
been the origin of the ri^C'its of property and dominion : and 
it was a sufficient ground to justify their establishment. Since 
their introduction, the right which was common to all man- 
kind is individually restricted to what each lawfully possesses. 

* Seo Etterlin, Simler, and Do Wat- f See the same historiane, and Bul- 
tevillo. linger, Stumpf, Tschudi, and Slettler. 

172 



IN A COUNTRY. 98 

The country which a nation inhabits, whether that nation has book i. 
emigrated thither in a body, or the different families of which SHEi^IL".* 
it consists were previously scattered oyer the country, and, 
there uniting, formed themselves into a political society, — 
that country, I say, is the settlement of the nation, and it has 
a peculiar and exclusive right to it. 

This right comprehends two things : 1. The domain, by g 204. it« 
virtue of which the nation alone may use the country for the "8^* **^®'. 
supply of its necessities, may dispose of it as it thinks pro- i^^!^^^ 
per, and derive from it every advantage it is capable of yield- gion. 
ing. 2. The empire, or the right of sovereign command, by [ 99 ] 
which the nation directs and regulates at its pleasure every 
thing that passes in the country. 

When a nation takes possession of a country to which no § 205. Ac- 
prior owner can lay claim, it is considered as acquiring the quisition of 
empire or sovereignty of it, at the same time with the domain. *^.® "^^®: 
For, since the nation is free and independent, it can have no"^^^^**^ 
intention, in settling in a country, to leave to others the right country. 
of command, or any of those rights that constitute sove- 
reignty. The whole space over which a natioil extends its 
government becomes the seat of its jurisdiction, and is called 
its territory/. 

If a number of free families, scattered over an independent j 206. Ano- 
country, come to unite for the purpose of forming a nation or thor mannor 
state, they altoeether acquire the sovereignty over the whole ®^ acquiring 

' .r . ^ , .. n^ ,, • "^i • • the empire 

country they mhabit : for they were previously in possession .^ ^ ^^J^ 
of the domain — a proportional share of it belonging to each country. 
individual family : and since they are willing to form together 
a political society, and establish a public authority, which 
every member of the society shall be bound to obey, it is 
evidently their intention to attribute to that public authority 
the right of command over the whole country. 

All mankind have an equal right to things that have not i 207. How 
yet fallen into the possession of any one; and those things * "^^^^.^^ *P- 
belong to the person who first takes possession of ^^li^^i. J^^^**^* 
When, therefore, a nation finds a country uninhabited, and desert ooun- 
without an owner, it may lawfully take possession of it : and, try. 
after it has sufficiently made known its w^ill in this respect, it 
cannot be deprived of it by another nation. Thus navigators 
going on voyages of discovery, furnished with a commission 
from their sovereign, and meeting with islands or other lands 
in a desert state, have taken possession of them in the name 
of their nation : and this title has been usually respected, 
provided it was soon after followed by a real possession. 

But it is questioned whether a nation can, by the bare act § 208. A 
of taking possession, appropriate to itself countries which it question on 
does not really occupy, and thus engross a much greater ex- *^ «^^^^^ 
tent of territory than it is able to people or cultivate. It is 
not difficult to determine that such a pretension would be an 
absolute infringement of the natural rights of men, and re- 

p2 173 



99 



ESTABLISHMENT OF A NATION IN A COUNTRY. 



BOOK 1. pugnant to the views of nature, which, having destined the 
^5J^'^^™i whole earth to supply the wants of mankind in general, gives 
no nation a right to appropriate to itself a country, except 
for the purpose of making use of it, and not of hindering 
others from deriving advantage from it. The law of nations 
will, therefore, not acknowledge the property and sovereignty 
of a nation over any uninhabited countries, except those of 
which it has really taken actual possession, in which it has 
formed settlements, or of which it makes actual use. In ef- 
fect, when navigators have met with desert countries in which 
[ 100 ] those of other nations had, in their transient visits, erected 
some monument to show their having taken possession of 
them, they have paid as little regard to that empty ceremony 
as to the regulation of the popes, who divided a great part 
of the world between the crowns of Castile and Portugal."*" 
§ 209. Whe. There is another celebrated question, to which the disco- 
ther it be ^erj of the New World has principally given rise. It is a49ked 
poMe88*a whether a nation may lawfully take possession of some part 
pan of a of a vast Country, in which there are none but erratic nations 
country in- whosc scauty^ population is incapable of occupying the whole ? 
habited only 'vv'e havc already observed (§ 81), in establishing the obliga- 
irandorinff *^^^ ^ Cultivate the earth, that those nations cannot exclu- 

' "' * Those decrees being of a very sin- 

gular nature, and hardly anywhere to be 
found but in very scarce books, the 
reader will not be displeased with see- 
ing here an extract of them. 

The bull of Alexander VL by which 
he gives to Ferdinand and Isabellay king 
and queen of Castile and Arragon, the 
New World, discovered by Christopher 
Columbus. 

"Motu p ttio" (says the pope), 
" non ad vestram, vel alterius pro vobis contra fecerint, incurrant, districtiua 



pope excepts only what might be in the 
possession of some other Christian 
prince before the year 1493; as if he 
had a greater right to give what be- 
longed to nobody, and especially what 
was possessed by the American nations. 
He adds: "Ac qnibuscnnque personie 
eujuscunque dignitatis, etiam imperialis 
et regalis, status, gradns, ordlnis, vel 
conditionis, sub excommunicationis latss 
sentontiad poena, quam eo ipso, si 



9iiper hoc nobis oblatss petitionis in- 
stantiam, sed de nostra mora liberali- 
tate, et ex certa scieutia, ac de aposto- 
licsB potcstatis plenitudine, omnes in- 
sulas et terras firmas, inventas et inve- 
niendas, dotectas et detegendas, versus 



Inhibemus ne ad insulas et terras firmas 
inventas et inveniendas, deteotas et de- 
tegendas, versus occidentem et meri- 
diem pro mercibus habendis, 

vel quavis alia de causa, aceedere pro- 
sumant absque vestra ao lueredum et 



occidentem et meridiem," (drawing a successorum vestrorum proditoon 
line from one pole to the other, at a licentia speciali, Ac Datum RomsB 
hundred leagued to the west of the apud S. Petrum anno 1493. IV. nonas 



Azores,) "anotoritate omnipotentis Dei 
nobis in beato Petro ooncessa, ao 
yieariatis Jesn Christi, qua Amgimnr 
in terris, cum omnibus illarum domi- 



Migi, Pontiflc. nostri anno primo." 
Zeibnitii Codex Juris Gent. Diplomat. 
203. 
See ihid. {DipUm. 165), the boll by 



nils, dvitatibus, Ac, yobis, hsdredibus- which pope Nicholas Y. gave to Al- 



que et successoribus vestris, CasteUsd 
et Legionis reglbus, in perpetuum te- 
nore prsBsentium donamus, ooncedimus, 
assignamus, vosque et haeredes ac sue- 
cessores, prsefatos, illorum dominos, cum 
plena libera et omni moda potestate. 



phonso, king of Portugal, and to the 
infant Henry, the sovereignty of Gui- 
nea, and the power of subduing the 
barbarous nations of those countries, 
forbidding any other to visit that ooa&<. 
try without the permission of Portugal. 



auctoritate et jurisdictione, facimus, This act is dated Rome, on the 8th of 
constituimus, et depntamus." The January, 1454. 
174 



OP OUR NATIVE COUNTRY, BTO. 100 

Bively appropriate to themselves more land than they have book i. 
occasion for, or more than they are able to settle and culti- ^'ff?!-?!!"' 
vate. Their unsettled habitation in those immense regions 
connot be accounted a true and legal possession ; and the 
people of Europe, too closely pent up at home, finding land 
of which • the savages stood in no particular need, and of 
vrhich they made no actual and constant use, were lawfully 
entitled to take possession of it, and settle it with colonies. 
The earth, as we have already observed, belongs to mankind 
in general, and was designed to furnish them with subsist- 
ence : if each nation had, from the beginning, resolved to 
appropriate to itself a vast country, that the people might 
live only by hunting, fishing, and wild fruits, our globe would 
not be sujficient to maintain a tenth part of its present inha- [ 101 ] 
bitants. We do not, therefore, deviate from the views of na- 
ture, in confining the Indians within narrower limits. How- 
ever, we cannot help praising the moderation of the English 
Puritans who first settled in New England ; who, notwith- 
standing their being furnished with a charter from their sove- 
reign, purchased of the Indians the land of which they in- 
tended to take possession.'*' This laudable example was fol- 
lowed by William Penn, and the colony of Quakers that he 
conducted to Pennsylvania. 

When a nation takes possession of a distant country, and 1 210. Co- 
settles a colony there, that country, though separated from^®*^^®'- 
the principal establishment, or mother-country, naturally be- 
comes a part of the state, equally with its ancient possessions. 
Whenever, therefore, the political laws, or treaties, make no 
distinction between them, every thing said of the territory 
of a nation, must also extend to its colonies. 



CHAP. XIX. 

OF OUR NATIVE COUNTRY, AND SBATBRAL THINGS THAT chap, xix. 
RELATE TO IT. 

THE whole of the countries possessed by a nation and sub- ^ 211. What 
ject to its laws, forms, as we have already said, its territory, w our coun- 
and is the common country of all the individuals of the na- ^- 
tion. We have been obliged to anticipate the definition of 
the term, native country (§ 122), because our subject led us 
to treat of the love of our country — a virtue so excellent and 
so necessary in a state. Supposing, then, this definition al- 
ready known, it remains that we should explain several things 
that have a relation to this subject, and answer the questions 
that naturally arise from it. 

* History of the English Colonies in North America. 

176 



101 OF OUR NATIVE COUNTRY, ETC. 



BOOK I. The citizens are the members of the civil society ; bound 
"■^•_to this society by certain duties, and subject to its authority, 



CHAP. XIX. 



1 212. Citi- they equally participate in its advantages. The natives, or 
^^tv^s** natural-born citizens, are those born in the country, of pa- 
rents who are citizens. As the society cannot exist and per- 
petuate itself otherwise than by the children of the citizens^ 
those children naturally follow the condition of their fathers, 
and succeed to all their rights. The society is supposed to 
desire this, in consequence of what it owes to its own preser- 
vation ; and it is presumed, as matter of course, that each 
citizen, on entering into society, reserves to his children the 
right of becoming members of it. The country of the fa- 
thers is therefore that of the children; and these become 
true citizens merely by their tacit consent. We shall soon 
see whether, on their coming to the years of discretion, they 
may renounce their right, and what they owe to the society 
in which they were born. I say, that, in order to be of the 
country, it is necessary that a person be born of a father who 
is a citizen ; for, if be is born there of a foreigner, it will be 
[ 102 ] only the place of his birth, and not his country. 
g 213. In- The inhabitants, as distinguished from citizens, are fo- 
habitants. rciguers, who are permitted to settle and stay in the country. 
Bound to the society by their residence, they are subject to 
the laws of the state while they reside in it ; and they are 
obliged to defend it, because it grants them protection, though 
they do not participate in all the rights of citizens. They 
enjoy only the advantages which the law or custom gives them. 
The perpetual inhabitants are those who have received the 
right of perpetual residence. These are a kind of citizens of 
an inferior order, and are united to the society without par- 
ticipating in all its advantages. Their children follow the 
condition of their fathers; and, as the state has given to 
these the .right of perpetual residence, their right passes to 
their posterity. 
^ 214. Na- A nation, or the sovereign who represents it, may grant to 
turaiization. a foreigner the quality of citizen, by admitting him into the 
(**) body of the political society. This is called naturalization. 

There are some states in which the sovereign cannot grant to 
a foreigner all the rights of citizens, — for example, that of 

(58) See fully in general, and of 39, 43, 45 j and see Reeves, 2d ed. 328, 

natoralization in Great Britain in par- 330, and 37 Geo. 3, c 97. — ^0. 
tieular, 1 Chitty's Commeroial Law, { A native oltizen of the United Statea 

123 to 131 ; 1 £la. Com. 369 ; Bao. Ab. cannot throw o£f his allegiance to the 

Aliens. A naturalization in a foreign goyemment> wiUiout an Act of Con- 

country, without license, will not dis- gross authorizing him to do so. Miller 

charge a natural-born subject from his v. The Begolution, 2 BalL 10; Skanta t. 

aUegianoe, 2 Chalmer's CoL Opin. 363. Dupont, 3 Pet S. C. Rep. 246; Goxe r. 

Bat a natural-bom subject of England, IfcTlvaine, 4 Cranch, 209 j Th« Santia^ 

naturalized in America, was holden to 9ima TrinidacUtf 7 Wheat. Rep. 283 ; 

be entitled to trade as an American The United States v. Qilliee, Peter's C. 

subject to the East Indies, 8 Term Rep. C. Rep. 159.} 
176 



OF OUB KATIVE COUNTEY, ETC. 102 

holding public offices — and where, consequently, he has the book i. 

Eower of granting only an imperfect naturalization. It ja chap, xix. 
ere a relation of the fundamental law, which limits the 
power of the prince. In other states, as in England and 
Poland, the prince cannot naturalize a single person, without 
the concurrence of the nation, represented by its deputies. 
Finally, there are states, as, for instance, England, where the 
single circumstance of being born in the country naturalizes 
the children of a foreigner. 

It is asked whether the children bom of citizens in a § 215. Chii- 
foreign country are citizens? The laws have decided this**°*^<^*?" 
question in several countries, and their regulations must he^^^ ™"* 
followed.(59) By the law of nature alone, children follow country, 
the condition of their fathers, and enter into all their rights 
(§ 212) ; the place of birth produces no change in this parti- 
cular, and cannot, of itself, furnish any reason for taking 
from a child what nature has given him; I say "of itself,** 
for, civil or political laws may, for particular reasons, ordain 
otherwise. But I suppose that the father has not entirely 

Sitted his country in order to settle elsewhere. If he has 
ed his abode in a foreign country, he is become a member 
of another society, at least as a perpetual inhabitant; and 
his children will be members of it also. 

As to children bom at sea, if they are born in those parts $2i6. Chll- 
of it that are possessed by their nation, they are bom in thedrenbomat 
country: if it is on the open sea, there is no reason to make ***• 
a distinction between them and those who are born in the 
country; for, naturally, it is our extraction, not the place of 
our birth, that gives us rights: and if the children are bom 
in a vessel belonging to the nation, they may be reputed bom 
in its territories ; for, it is natural to consider the vessels of a 
nation as parts of its territory, especially when they sail upon 
a free sea, since the state retains its jurisdiction of er those 
vessels. And as, according to the commonly received custom, 
this jurisdiction is preserved over the vessels, even in parts 
of the sea subject to a foreign dominion, all the children bom 
in the vessels of a nation are considered as bom in its terri- 
tory. For the same reason, those born in a forei^ vessel 
are reputed born in a foreign country, unless their birth took 
place in a port belonging to their own nation : for, the port 
IS more particularly a part of the territory ; and the mother, 
though at that moment on board a foreign vessel, is not on 
that account out of the country. I suppose that she and her 
husband have not quitted their native country to settle else- 
where- [ 103 ] 

For the same reasons also, children bom out of the coun-§2i7. Chil- 
try, in the armies of the state, or in the house of its minister at ^^ ^ra iv 
a foreign court, are reputed bom in the country; for a citi- ^^^^'^'^^ 

(69) See 1 Chita's Commercial Law, 114, n. 1 ; 115, n. 1. 

83 177 



10a OF OUR NATIVE COTTITrRT, BTC. 

lioaff 1, »en who IS absent with his family, on the service of the state, 

cjap. XIX. but still dependent on it, and subject to its jurisdiction, can- 

or in the not be Considered as having quitted its territory. 

house of its Settlement is a fixed residence in any place, -with an inten- 

a*fore^^ ^^ ^^^ ^^ always staying there. A man does not, then, esta- 

a>im!*^ blish his settlement in any place, unless he makes sufficiently 

§218. Set- known his intention of fixing there, either tacitly or by an 

tlement. express declaration. However, this declaration is no reason 

why, if he afterwards changes his mind, he may not transfer 

his settlement elsewhere, in this sense, a person who stops 

at a place upon business, even though he stay a long time, 

has only a simple habitation there, but has no settlement. 

Thus, the envoy of a foreign prince has not his settlement at 

the court where he resides. 

The naturaly or original settlement^ is that which we ac- 
quire by birth, in the place where our father has his ; and 
we are considered as retaining it, till we have abandoned it, in 
order to choose another. The acquired settlement {adsciti- 
tium) is that where we settle by our own choice. 
§219. Va- Vagrants are people who nave no settlement. Conse- 
grante. qucntly, those born of vagrant parents have no country, since 
a man's country is the place where, at the time of his birth, 
his parents had their settlement (§ 122), or it is the state of 
which his father was then a member, which comes to the same 
point; for, to settle for ever in a nation, is to become a mem- 
ber of it, at least as a perpetual inhabitant, if not with all the 
privileges of a citizen. We may, however, consider the coun- 
try of a vagrant to be that of his child, while that vagrant is 
considered as not having absolutely renounced his natural or 
original settlement. 
§220. Whc- Many distinctions will be necessary, in order to give a com- 
ther a per^ pi^te solution to the celebrated question, whether a man may 
q^t hw^ ^Mt'iC his * country or the society of which he is a member. (60) 
country. "^-1* The children are bound by natural ties to the society in 
which they were born ; they are under an obligation to show 
themselves grateful for the protection it has afiorded to their 
fathers, and are in a great measure indebted to it for their birth 
and education. They ought, therefore, to love it, as we have 
already shown (§ 122), to express a just gratitude to it, and 
requite its services as far as possible, by serving it in turn. 
We have observed above (§ 212), that they have a right to 
enter into the society of which their fathers were members. 
r 104 1 But every man is born free ; and the son of a citizen, when 
come to the years of discretion, may examine whether it be 
convenient for him to join the society for which he was des- 
tined by his birth. If he does not find it advantageous to 
remain in it, he is at liberty to quit it, on making it a com- 

(60) In Great Britam, the established 1 Bla. C. 369, 3 ChlU Com. Law, 129 
maxim is nemo potat exuere patriam, to 132. 
178 



OF OUR KATIVB COUNTRY, ETC. 104 

pensation for >hat it has done in his favour,* and presery- ^ook i. 
ing, as far as his new engagements will allow him, the senti- chap, iix. 
ments of love and gratitude he owes it. A man's obligations 
to his natural country may, however, change, lessen, or en- 
tirely vanish, according as ho shall have quitted it lawfully, 
and with good reason, in order to choose another, or has 
been banished from it deservedly or unjustly, in due form of 
law or by violence. 

2. As soon as the son of a citizen attains the age of man- 
hood, and acts as a citizen, he tacitly assumes that character ; 
his obligations, like those of others who expressly and for- 
mally enter into engagements with society, become stronger 
and more extensive : but the case is very different with re- 
spect to him of whom we have been speaking. When a so- 
ciety has not been formed for a determinate time, it is allow- 
able to quit it, when liiat separation can take place without 
detriment to the society. A citizen mf.y therefore quit the 
state of which he is a member, provided it be not in such a 
conjuncture when he cannot abandon it without doing it a 
visible injury. But we must here draw a distinction between 
what may in strict justice be done, and what is honourable 
and conformable to every duty — ^in a word, between the irtr 
temal and the external obligation. Every man has a right 
to quit his country, in order to settle in any other, when by 
that step he does not endanger the welfare of his country. 
But a good citizen will never determine on such a step with- 
out necessity, or without very strong reasons. It is taking 
a dishonourable advantage of our liberty, to quit our asso- 
ciates upon slight pretences, after having derived considerable 
advantages from them ; and this is the case of every citizen, 
•with respect to his country. 

8. As to those who have the cowardice to abandon their 
country in a time of danger, and seek to secure themselves, 
instead of defending it, they manifestly violate the social 
compact, by which S\ the contracting parties engaged to de- 
fend themselves in a united body, and in concert ; they are 
infunous deserters, whom the state has a right to punish 
severely.f 



* Thb is the foundation of the tax moted in the army of Saxony, had, with 

paid on quitting a countiy, called, in the permisidon of hia fonner soyereign, 

Latin, cfiuitf tmgratiom», sold the property he poMeased in Li- 

t Chailes XII. condemned to death Yonia. He had therefore quitted his 

and executed General Paticul, a native own country, to choose another (as 

of Liyonia, whom he had made prisoner eyery free citizen is at liberty to do, 

in an eugagement with the Saxons, except, as we have observed above, at 

But the sentence and execution were a critical moment, when the drcum- 

a yiolation of the laws of justice. Pat* stances of his country require the aid 

jnil, it is true, had been bom a subject of all her sons), and the king of Sweden, 

af the king of Sweden ; but he had by permitUng him to sell his property, 

quitted his native country at the age had consented to his emigration. 



of twelve yeani^ and having been pro- 



179 



105 OF OUR NATIVE OOUNTRT, ETC. 

BOOK I. In a time of peace and tranqnillity, when the country haa 
CHAP, iix. jj^ actual need of all her children, the very welfare of the 
i 221. How gtate, and that of the citizens, requires that every individual 
mT^baent ^® ^* liberty to travel on business, provided that he be always 
himsei/for ready to return, whenever the public interest recalls him. It 
a time. is not presumed that any man has bound himself to the bo- 
ciety of which he is a member, by an engagement never to 
leave the country when the interest of his alairs requires it, 
and when he can absent himself without injury to his country. 
i 222. Vari- The political laws of nations vary greatly in this respect, 
ation of the In gome nations, it is at all times, except in case of actual 
laws in^ihia ^*^' allowcd to cvcry citizcu to absent himself, and even to 
,*7pect. (61) q^t the country altogether, whenever he thinks proper, with- 
Theso mast out alleging any reason for it. This liberty, contrary in its 
be obeyed, qwu nature to the welfare and safety of society, can nowhere 
be tolerated but in a country destitute of resources and inca- 
pable of supplying the wants of its inhabitants. In such a 
country there can only be an imperfect society ; for civil 
society ought to be capable of enabling all its members to 
procure, by their labour and industry, lul the necessaries of 
life : unless it effects this, it has no right to require them to 
devote themselves entirely to it. In some other states, every 
citizen is left at liberty to travel abroad on business, but not 
to quit his country altogether, without the express permission 
of the sovereign. Finally, there are states where the rigour 
of the government will not permit any one whatsoever to go 
out of the country without passports in form, which are evea 
not granted without great difficulty. In all these cases, it is 
necessary to conform to the laws, when they are made by a 
lawful authority. But, in the last-mentioned case, the sove- 
reign abuses his power, and reduces his subjects to an insup- 
portable slavery, if he refuses them permission to travel for 
their own advantage, when he might grant it to them without 
inconvenience, and without danger to the state. Nay, it will 
presently appear, that, on certam occasions, he canno^ under 
any pretext, detain persons who wish to quit the country, 
with the intention of abandoning it for ever. 
i 228. Cases There are cases in which a citizen has an absolute right 
in which a to renounce his country, and abandon it entirely — a right 
a ri ^ht tT f^^"^^®d on reasons derived from the very nature of the social 
qnit^his compact. 1. If the citizen cannot procure subffistence in his 
conntry. owu couutry, it is undoubtcoUy lawful for him to seek it else- 
where. For, political or civil society being entered into only 
with a view of facilitating to each of its members the means 
of supporting himself, and of living in happiness and safety, 
it would be absurd to pretend that a member, whom it cannot 
furnish with such things as are most necessary, has not a right 
to leave it. 

(61) Stepot, Book 11. oh. viiL { 108, p. 731 to UZ, as to writs of «e exeat 
p. 174, and Ghitty't General Practioe, regno. 
180 



OF OUR NATIVE COUNTRY, ETC. 105 X 

2. If the body of the society, or he who represents it, ah- book i. 
solutely fail to discharge their obligations towards a citizen^ -^SfTiZEi 
the latter may withdraw himself. For, if one of the contract- 
ing parties does not observe his engagements, the other is no 
longer bound to fulfil his ; as the contract is reciprocal be- [ 106 ] 
tween the society and its members. It is on the same prin- 
ciple, also, that the society may expel a member who violates 

its laws. 

3. If the major part of the nation, or the sovereign who 
represents it, attempt to enact laws relative to matters in 
which the social compact cannot oblige every citizen to sub- 
mission, those who are averse to these laws have a right to 
quit the society, and go settle elsewhere. For instance, if the 
sovereign, or the greater part of the nation, will allow but 
one religion in the state, those who believe and profess another 
religion have a right to withdraw, and to take with them their 
families and effects. For, they cannot be supposed to have 
subjected themselves to the authority of men, in affairs of 
conscience ;* and if the society suffers and is weakened by 
their departure, the blame must be imputed to the intolerant 
party ; for it is they who fail in their observance of the social 
compact — ^it is they who violate it, and force the others to a 
separation. We have elsewhere touched upon some other in- 
stances of this third case, — ^that of a popular state wishing 
to have a sovereign (§ 33), and that of an independent nation 
taking the resolution to submit to a foreign power (§ 195). 

Those who quit their country for any lawful reason, with i 224. Emi- 
a design to settle elsewhere, and take their families and pro- S'^^^ 
perty with them, are called emigrants. 

Their right to emigrate may arise from several sources, i 225. 
1. In the cases we have just mentioned (§ 223), it is a natural ^^f ^ 
jright, which is certainly reserved to each individual in the ^^ ^^ 
Tery compact itself by which civil society was formed. 

2. The liberty of emigration may, in certain cases, be se- 
cured to the citizens by a fundamental law of the state. The 
citizens of Neufchatel and Valangin in Switzerland may quit 
the country and carry off their effects at their own pleasure, 
without even paying any duties. 

8. It may be voluntarily granted them by the sovereign. 

4. This right may be derived from some treaty made with 
a foreign power, by which a sovereign has promised to leave 
full liberty to those of his subjects, who, for a certain reason 
—on account of religion, for instance— desire to transplant 
themselves into the territories of that power. There are 
such treaties between the German princes, particularly for 
cases in which religion is concerned. In Switzerland like- 
wise, a citizen of Bern who wishes to emigrate to Fribourg, 
and there profess the religion of the place, and, reciprocally, 

* See above, the chapter on Reli^on. - 

Q 181 



106 OF OUR NATIVE COUNTRY, ETC. 

BOOK L a citizen of Fribourg who, for a Bimilar reason, is desirous of 
CHAP. XIX. femoving to Bern, has a right to quit his native country, and 
carry off with him all his property. 

It appears from several passages in history, particularly 
the history of Switzerland and the neighbouring countries, 
that the law of nations, established there by custom some 
ages back, did not permit a state to receive the subjects of 
another state into the number of its citizens. This vicious 
[ 107 ] custom had no other foundation than the slavery to which the 
people were then reduced. A prince, a lord, ranked his sub- 
jects under the head of his private property ; he calculated 
their number as he did that of his flocks ; and, to the disgrace 
of human nature, this strange abuse is not yet everywhere 
eradicated. 
§ 226. If K the sovereign attempts to molest those who have a right 
the 8OV0- to emigrate, he does them an injury ; and the injured indi- 
reign m- yiduaig may lawfully implore the protection of the power who 
ri^t^ho in- ^ willing to reccivc them. Thus we have seen Frederic Wil- 
jares them. Uam, king of Prussia, grant his protection to the emigrant 

Protestants of Saltzburgh. 
i 227. Sup- The name of supplicanU is given to all fugitives who im- 
pUcants. plore the protection of a sovereign against the nation or 
prince they have quitted. We cannot solidly establish what 
the law of nations determines with respect to them, imtil we 
have treated of the duties of one nation towards others. 
J 228. Ex- Finally, exile is another manner of leaving our country. 
Ue and ba- ^^ ^^^7^ jg ^ man driven from the place of his settlement, or 
nia ent constrained to quit it, but without a mark of infamy. Ba- 
nishment is a similar expulsion, with a mark of infamy an- 
nexed.* Both may be for a limited time, or for ever. If an 
exile, or banished man, had his settlement in his own country, 
he is exiled or banished from his country. It is, however, 
proper to observe that common usage applies also the terms 
exile and banishment to the expulsion of a foreigner who is 
driven from a country where he had no settlement, and to 
which he is, either for a limited time, or for ever, prohibited 
to return. 

As a man may be deprived of any right whatsoever by way 
of punishment — exile, which deprives him of the right of 
dwelling in a certain place, may be inflicted as a punishment : 
. banishment is always one ; for, a mark of infamy cannot be 
set on any one, but with a view of punishing him for a fault, 
either real or pretended. 

When the society has excluded one of its members by a 

* The oommon acceptation of these by some disgrace at court." The reason 

tvro terms is not repugnant to our ap- is plain : such a condemnation from the 

plication of them. The French aca- tribunal of justice entails infamy on 

demy says, "Banishment is only ap- the emigrant; whereas a disgrace ftt 

plied to condemnations in due course court does not usually involve the same 

of law. £jcile is only an absence caused consequence. 
182 



■ OF OUR NATIVE Oot^TilY, EWk 107 

perpetual banishment, he is only banished from tile \hiidi^ t>f boos i. 
that society, and it cannot hinder him from living wherever chap, xix. 
else he pleases ; for, after having driven him out, it can no 
longer claim any authority over him. The contrary, how- 
ever, may take place by particular conventions between two 
or more states. Thus, every member of the Helvetic con- 
federacy may banish its own subjects out of the territories of 
Switzerland in general ; and in this case the banished person 
will not be allowed to livtJ in any of the cantons, or in the 
territories of their allies. 

Exile is divided into voluntary and involuntary. It is vo- 
luntary, when a man quits his settlement to escape some 
punishment, or to avoid some calamity — and involuntary, [ 108 ] 
when it is the effect of a superior order. 

Sometimes a particular place is appointed, where the exiled 
person is to remain during his exile ; or a certain space is 
particularized, which he is forbid to enter. These various 
circumstances and modifications depend on him who has the 
power of sending into exile. 

A man, by being exiled or banished, does not forfeit the §229. The 
human character, nor consequently his right to dwell some-f**^?^jj* 
where on earth. He derives this right from nature, or rather m^have a 
from its Author, who has destined tne earth for the habitation right to live 
of mankind ; and the introduction of property cannot have somewhere, 
impaired the right which every man has to the use of such 
things as are absolutely necessary — a right which he brings 
with him into the world at the moment of his birth. 

But though this right is necessary and perfect in the gene- § 230. Na- 
ral view of it, we must not forget that it is but imperfect with ^y™ o^ this 
respect to each particular country. For, on the other hand, "^^*' 
every nation has a right to refuse admitting a foreigner 
into her territory, when he cannot enter it without exposing 
the nation to evident danger, or doing her a manifest injury. 
What she owes to herself, the care of her own safety, gives 
her this right ; and, in virtue of her natural liberty, it be- 
longs to the nation to judge, whether her circumstances will 
or will not justify the admission of that foreigner (Prelim. 
§ 16). He cannot, then, settle by a full right, and as he 
pleases, in the place he has chosen, but must ask permission 
of the chief of the place ; and, if it is refused, it is his duty 
to submit. 

However, as property could not be introduced to the pre- §231. Duty 
judice of the right acquired by every human creature, of not ©f nations 
being absolutely deprived of such things as are necessary — ^^^^ 
no nation can, without good reasons, refuse even a perpetual 
residence to a man driven from his country. But, if particular 
and substantial reasons prevent her from affording him an 
asvlum, this man has no longer any right to demand it — be- 
cause, in such a case, the country inhabited by the nation 

183 



108 OF OUR NATIVE COUNTRY, ETC. 

BOOK I. cannot, at the same time, serve for her own use, and that of 
CHAP. XIX. ^jjjg foreigner. Now, supposing even that things are still in 
common, nobody can arrogate to himself the use of a thing 
which actually serves to supply the wants of another. Thus, 
a nation, whose lands are scarcely sufficient to supply the 
wants of the citizens, is not obliged to receive into its territo- 
ries a company of fugitives or exiles. Thus, it ought even 
absolutely to reject them, if they are infected with a conta- 
gious disease. Thus, also, it has a right to send them else- 
where, if it has just cause to fear that they will corrupt the 
manners of the citizens, that they will create religious disturb- 
ances, or occasion any other disorder, contrary to the public 
safety. In a word, it has a right, and is even obliged, to 
follow, in this respect, the suggestions of prudence. But 
this prudence should be free from unnecessary suspicion 
and jealousy ; it should not be carried so far as to refuse a 
[ 109 ] retreat to the unfortunate, for slight reasons, and on ground- 
less and frivolous fears. The means of tempering it will be, 
never to lose sight of that charity and commiseration which 
are due to the unhappy. We must not suppress these 
feelings even for those who have fallen into misfortune 
through their own fault. For, we ought to hate the crime, 
but love the man, since all mankind ought to love each 
other. 
§ 232. A If an exiled or banished man has been driven from his 
nation can- country for any crime, it does not belong to the nation in 
not punish ^hi^h he has taken refuge to punish him for that fault com- 
fauUs com- fitted in a foreign country. For, nature does not give to 
mitted oat men or to nations any right to inflict punishment, except for 
of it8 terri- their own defence and safety (§ 169) ; whence it follows that 
tones; ^^ cannot punish any but those by whom we have been in- 
jured. 
§233.. ex- But this very reason shows, that, although the justice of 
eept such each nation ought in general to be confined to the punishment 
as affect the ^f crimes Committed in its own territories, we ought to except 
aafo^Tf fr^°^ *^^^ ^^ those villains, who, by the nature and habitual 
mankind, frequency of their crimes, violate all public security, and de- 
clare themselves the enemies of the human race. Foisoners, 
assassins, and incendiaries by profession, may be exterminated 
wherever they are seized; for they attack and injure all 
nations by trampling under foot th» foundations of their com- 
mon safety. Thus, pirates are sent to the gibbet by the first 
into whose hands they fall. If the sovereign of the country 
where crimes of that nature have been committed, reclaims 
the perpetrators of them, in order to bring them to punish- 
men, they ought to be surrendered to him, as being the 
person who is principally interested in punishing them 
m an exemplary manner. And as it is proper to have 
criminals regularly convicted by a trial in due form of law, 

184 



OP PUBLIC, COMMON, AND PRIVATB PROPERTY. 109 

3 a 8€ 

ilass t( 
mitted. (62) 



this is a second reason for delivering up malefactors of book i. 
that class to the states where their crimes have been com- ^^^' ^^: 



CHAP. XX. 

OP PUBLIC, COMMON, AND PRIVATE PROPERTY. 



LET US now see what is the nature of the different things ; 234. What 
contained in the country possessed by a nation, and endeavour **»« Romans 
to establish the generaJ principles of the law by which they *^^ ^^ 
are regulated. This subject is treated by civilians under the **^"*"'*^' 
title de rerum divisione. There are things yhich in their own 
nature cannot be possessed : there are others, of which nobody 
claims the property, and which remain common, as in their 
primitive state, when a nation takes possession of a country : 
the Roman lawyers called those things res communes^ things 
common : such were, with them, the air, the running water, 
the sea, the fish, and wild beasts. 

Every thing susceptible of property is considered as be- { 235. Ag. 
longing to the nation that possesses the country, and as form- fs^fs^^ 
ing the aggregate mass of its wealth. But the nation does ^®^^ ^^ 
not possess all those things in the same manner. Those not its diTisionb. 
divided between particular communities, or among the indi- [ HO ] 
viduals of a nation, are called pvhlie property. Some are 
reserved for the necessities of the state, and form the demesne 
of the crown, or of the republic : others remain common to 
all the citizens, who take advantage of them, each according 
to his necessities, or according to the laws which regulate 
their use ; and these are called common property. There are 
others that belong to some body or community, termed joint 
property y red universitatis ; and these are, with respect to this 
body in particular, what the public property is with respect 
to the whole nation. As the nation may be considered as a 
great community, we may indifferently give the name of cowr 
man property to those things that belong to it in common, in 

(62) A distinction has nsoallj. been Barn. A Cress. 440. {A foreij^ 
taken between capital offences and mere govemment has no right, by the Law 
miFdemeanors, and for one state to al- of Nations, to demand of the govern- 
low the taking and removing an offen- ment of the United States a surrender 
der of the former class back into the of a citiien or subject of such foreign 
country where the offence was com- govemmenty who has. committed a crime 
mitted, in order to take his trial in the in his own oountiy. Such a right can 
latter, but not so in case of misdemean- only exist by treaty. Comm, y. Deiuon, 
ors. But sometimes, as upon a charge 10 Serg. A Raw. 125 ; C(ueo/I>o9 Santos, 
of petjury, a foreign country will allow 2 Brocken. Rep. 493. The Caw of 
the removal of an offender even in case Jiobina, Bee's Rep. 266, was under the 
of a misdemeanor. See Ex parte Scott, treaty with Qreat Britain. } 

24 2 XT 185 



110 OF PUBLIC, COMMON, AND 

BOOK I. such a manner that all the citizens may make n$e of them, 
CHAP. xx._ jy^^ ^^ those that are possessed in the same manner by a body 
or community : the same rules hold good with respect to both. 
Finally, the property possessed by individuals is termed pri- 
vatepropertyy res singuUrem, 
§ 236. Two When a nation in a body takes possession of a country, 
ways of ac- evory thing* that is not divided among its members remains 
qumng commou to the whole nation, and is called public property. 
perty! ^™ There is a second way whereby a nation, and, in general, 
every community, may acquire possessions, viz. by the will 
of whosoever thinks proper to convey to it, under any title 
whatsoever, the domain or property of what he possesses. 
g 237. The As soon as the nation commits the reins of government to 
revenues of the hands of a prince, it is considered as committing to him, 
the pubUc ^^ ^Yl^ same time, the means of governing. Since, therefore, 
naturaify aT *^® iucome of the public property, of the domain of the 
the Bove- State, is destined for the expenses of government, it is natu- 
reign's dis- rally at the prince's disposal, and ought always to be consi- 
posaL dered in this light, unless the nation has, in express terms, 

excepted it in conferring the supreme authority, and has pro- 
vided in some other manner for its disposal, and for the ne- 
cessary expenses of the state, and the support of the prince's 
person and household. Whenever, therefore, the prince is 
purely and simply invested with the sovereign authority, it 
includes a full discretional power to dispose of the public re- 
venues. The duty of the sovereign, indeed, obliges him to 
apply those revenues only to the necessities of the state ; but 
he alone is to determine the proper application of them, and 
is not accountable for them to any person. 
I 238. The The nation may invest the superior with the sole use of its 
nation may commou posscssious, and thus add them to the domain of the 
^anthim gtato. It may even cede the property of them to him. But 
prop^rtyof *^^^ cession of the use or property requires an express act of 
its common the proprietor, which is the nation. It is difficult to found it 
possessions, on a tacit consent, because fear too often hinders the subjects 
from protesting against the unjust encroachments of the 
sovereign. 
1 239. or The people may even allow the superior the domain of the 
allow him things they possess in common, and reserve to themselves the 
the domain, ^g^ ^f ^j^^j^ jj^ ^\^^ whole or in part. Thus, the domain of a 
to iJeiT the "^er, for instance, may be ceded to the prince, while the people 
use of them, rcscrve to themselvcs the use of it for navigation, fishing, the 
[ 111 ] watering of cattle, &c. They may also allow the prince the 
sole right of fishing, &c., in that river. In a word, the peo- 
ple may cede to the superior whatever right they please over 
the common possessions of the nation ; but all those particu- 
lar rights rights do not naturally, and of themselves, flow from 
the sovereignty. 
J 240. If the income of the public property, or of the domain, is 

Taxes. not Sufficient for the public wants, the state supplies the de- 

186 



PEIVATB PROPBBTY. Ill 



ficiency by taxes. These ought to be regulated in such a book i. 
manner, that all the citizens may pay their quota in proper- -£5i£-H:. 
tion to their abilities, and the advantages they reap from the 
society. All the members of civil society being equally 
obliged to contribute, according to their abilities, to its ad- 
vantage and safety, they cannot refuse to furnish the subsi- 
dies necessary to its preservation, vrhen they are demanded 
by lawful authority. 

Many nations have been unmlling to commit to the prince ; 241. The 
a trust of so delicate a nature, or to grant him a power that nation may 
he may so easily abuse. In establisning a domain for the[^'^®^^^ 
support of the sovereign and the ordinary expenses of the rig^t ^f ^^ 
state, they have reserved to themselves the right of providing, posing 
by themselves or their representatives, for extraordinary them, 
wants, in imposing taxes payable by all the inhabitants. In 
England, the king lays the necessities of the state before the 
parliament ; that body, composed of the representatives of 
the nation, deliberates, and, with the concurrence of the king, 
determines the sum to be raised, and the manner of raising 
it. (63) And of the use the king makes of the money thus 
raised, that same body obliges him to render it an account. 

In other states, where the sovereign possesses the full and g 242. Of 
absolute authority, it is he alone that imposes taxes, regulates th© boto- 
the manner of raising them, and makes use of them as he T^*^!^^^ 
thinks proper, without giving an account to anybody. The p^^ey. 
French king at- present enjoys this authority, (64) with the 
simple formality of causing his edicts to be registered by the 
parliament ; and that body has a right to make humble re- 
monstrances, if it sees any inconveniences attending the im- 
position ordered by the prince: — a wise establishment for 
causing truth, and the cries of the people, to reach the ears 
of the sovereign, and for setting some bounds to his extrava- 
gance, or to the avidity of the ministers and persons con- 
cerned in the revenue.* 

(C3) All money bills, imposing a tax, dis. But Peter, Count de Lara, yigor- 

must originate in and be passed by the onsly opposed the measure, "contrac- 

HouBO of Commons, and afterwards taque nobilium manu, ex conyentu dis- 

snbmitted to the lords and the king for oedit^ armis tueri paratus partam armls 

their sanction, before they can become et Tirtute a majoribus immunitatem, 

law. neque passnrum aflSrmans nobilitatis 

(64) This was, of course, when Vattel opprimendse atque novis yectigalibus 

wrot«, and before the Revolution. vezandss ab eo aditn inlfcium fieri ; Man- 

* Too great attention cannot be ros opprimere non esse tanti, ut grayi- 

nsed in watching the imposition of ori servitute rempnblicam implicari si- 

taxes, which, once introduced, not only nant. Rex, periculo permotus, ab ea 

continue, but ore so easily multiplied. — cogitatione desistit Petrum nobiles, 

Alphonso VIII. king of Castile, be- consilio oommunicato, quotannis convi- 

sieging a city belonging to the Moors vio exoipere decreyerunt, ipsum et pos- 

(Concham urbem in CelUberis), and teres, — ^nayatae operse mercedem, rei 

being in want of money, applied to the gestsd l>on8B posteritaU monumentum, 

states of his kingdom for permission to dooumentumque ne quavis occasiono 

impose, on every free inhabitant, a jus libertatis imminui patiantur." Ma- 

capitation-tax of five golden marave- buna. 

' 187 



112 OF PUBLIC, COMMON, AND 

BOOK L The prince who is invested with the power of taxing his 
CHAP. XX. people ought by no means to consider the money thus raised 



i 243. Du- as his own property. He ought never to lose sight of the end 
Ues of the for ^hich this power was granted him : the nation was willing 
w^^^t^*** to enable him to provide, as it should seem best to his wisdom, 
u^e. for the necessities of the state. If he diverts this money to 
other uses, — if he consumes it in idle luxury, to gratify his 
pleasures, to satiate the avarice of his mistresses and favour- 
ites, — ^we hesitate not to declare to those sovereigns who are 
still capable of listening to the voice of truth, that such a one 
is not less guilty, nay, that he is a thousand times more so, 
than a private person who makes use of his neighbours' pro- 
perty to gratify his irregular passions. Injustice, though 
screened from punishment, is not the less shameful. 
i 244. Emi- Evcry thing in the political society ought to tend to the 
tient domain gQQ^ Qf fj^Q community; and, since even the persons of the 
too sovl*^ citizens are subject to this rule, their property cannot be ex- 
reignty. cepted. The state could not subsist, or constantly administer 
the public affairs in the most advantageous manner, if it had 
not a power to dispose occasionally of all kinds of property 
subject to its authority. It is even to be presumed, that, when 
the nation takes possession of a country, the property of cer- 
tain things is given up to the individuals only with this reserve. 
The right which belongs to the society, or to the sovereign, of 
disposing, in case of necessity, and for the public safety, of all 
the wealth contained in the state, is called- the eminent domain. 
It is evident that this right is, in certain cases, necessary to 
him who governs, and consequently is a part of the empire, or 
sovereign power, and ought to be placed in the number of the 
prerogatives of majesty (§ 45). When, therefore, the people 
confer the empire on any one, they at the same time invest 
him with the eminent domain^ unless it be expressly reserved. 
Every prince, who is truly sovereign, is invested with this right 
when the nation has not excepted it, — ^however limited his 
authority may be in other respects. 

If the sovereign disposes of theptiblic property in virtue of 
his eminent domain^ the alienation is valid, as having been made 
with suflBcient powers. 

When, in a case of necessity, he disposes in like manner of 
the possessions of a community, or an individual, the aliena- 
tion will, for the same reason, be valid. But justice requires 
that this community, or this individual, be indemnified at the 
public charge : and if the treasury is not able to bear the 
expense, all the citizens are obliged to contribute to it ; for, 
the burdens of the state ought to be supported equallv, or in 
[ 113 ] &> JQst proportion. The same rules are applicable to this case 
as to the loss of merchandise thrown overboard to save the 
vessel. 
J 245. Go- Besides the eminent domain^ the sovereignty gives a right 
vemment of of another nature over all public, common, and private pro- 

188 



PRIVATB PROPBRTT. 118 

perty, — that is, the empire, or the right of command in all book i. 
places of the country belonging to the nation. The supreme ^^^' ^^ 
power extends to every thing that passes in the state, wher-P^^^*°P">- 
ever it is transacted ; and, consequently, the sovereign com- ^^^' 
mands in all public places, on rivers, on highways, in deserts, 
&c. Every thing that happens there is subject to his au- 
thority. 

In virtue of the same authority, the sovereign may make § 246. The 
laws to regulate the manner in which common property is to superior 
be used, — as well the property of the nation at large, as that ™*y ™f^® 
of distinct bodies or corporations. He cannot, indeed, take JJ^^to 
away their right from those who have a share in that property : the use of 
but the care he ought to take of the public repose, and of tne t^ngs pos- 
common advantage of the citizens, gives him doubtless a right "®'**^ *° 
to establish laws tending to this end, and, consequently, to^°"^®°* 
regulate the manner in which things possessed in common are 
to be enjoyed. This affair might give room for abuses, and 
excite disturbances, which it is important to the state to pre- 
Tent, and against which the prince is obliged to take just 
measures. Thus, the sovereign may establish wise laws with 
respect to hunting and fishing, — ^forbid them in the seasons of 
propagation, — ^prohibit the use of certain nets, and of every 
destructive method, &c. But, as it is only in the character 
of the common father, governor, and guardian of his people, 
that the sovereign has a right to make those laws, he ought 
never to lose sight of the ends which he is called upon to ac- 
complish by enacting them ; and if, upon those subjects, he 
makes any regulations with any other view than that of the 
public welfare, he abuses his power. 

A corporation, as well as every other proprietor, has a §247. Alien- 
right to alienate and mortgage its property : but the present ation of the 
members ought never to lose si^ht of the destination of that^'^^*'^ ^^ 
joint property, nor dispose of it otherwise than for the ad-^^J^**" 
yantage of the body, or in cases of necessity. If they alien- 
ate it with any other view, they abuse their power, ana trans- 
gress against the duty they own to their own corporation and 
their posterity ; and the prince, in quality of common father, 
has a right to oppose the measure. Besides, the interest of 
the state requires that the property of corporations be not 
squandered away; — ^which gives the prince intrusted with 
the care of watching over the public safety, a new right to 
prevent the alienation of such property. It is then very 
proper to ordain in a state, that the alienation of the pro- 
perty of cor^rations should be invalid, without the consent 
of the superior powers. And indeed the civil law, in this 
respect, gives to corporations the rights of minors. But this 
is strictly no more than a civil law ; and the opinion of those 
who make the law of nature alone a sufficient authority to 
take from a corporation the power of alienating their pro- 

189 



114 OF PUBLIC, COMMON, AND 

BOOK I. perty without the consent of the soTereign, appears to me 
CHAP. XX. ^^ jj^ ^^- ^ ^f foundation, and contrary to the notion of pro* 
perty. A corporation, it is true, may have received pro- 
perty, either from their predecessors or from any other per* 
sons, with a clause that disables them from alienating it : but 
in this case they have only the perpetual use of it, not the 
entire and free property. If any of their property was 
solely given for the preservation of the body, it is evident 
that the corporation has not a right to alienate it, except in 
a case of extreme necessity : — and whatever property they 
may have received from the sovereign is presumed to be of 
that nature. 
§ 248. Use AH the members of a corporation have an equal right to 
^^ ^^^^^ *^® ^® ^^ ^^ common property. But, respecting the manner 
prop y. ^j enjoying it, the body of the corporation may make such 
regulations as they think proper, provided that those regula- 
tions be not inconsistent with tiiat equality which ought to 
be preserved in a communion of property. Thus, a corpo- 
ration may determine the use of a common forest or pasture, 
either allowing it to all the members according to their wants 
or allotting to each an equal share; but they have not a 
right to exclude any one of the number, or to make a distinc- 
tion to his disadvantage, by assigning him a less share than 
that of the others. 
; 249. How All the members of a body having an equal right to its 
each mem- common property, each individual ought so to manage in 
^' u.*^ *^" t^l^g advantage of it, as not in any wise to injure the com- 
^^^ * mon use. According to this rule, an individual is not per- 

mitted to construct upon any river that is public property, 
any work capable of rendering it less convenient for the use 
of every one else, as, erecting mills, making a trench to turn 
the water upon lus own lands, &c. If he attempts it, he ar- 
rogates to himself a private right, derogatory to the common 
right of the public. 
§250. Right The Tight oi anticipation {jm prseventionis) ouffht to be 
of anu<^a- faithfully observed in the use of common things wnich can- 
uwoTit.^ not be used by several persons at the same time. This name 
is given to the right which the first comer acquires to the use 
of things of this nature. For instance, if I am actually 
drawing water from a common or public well, another who 
comes after me cannot drive me away to draw out of it him- 
self: and he ou^ht to wait till I have done. For, I make 
use of my right in drawing that water, and nobody can dis- 
turb me : a second, who has an equal right, cannot assert it 
to the prejudice of mine ; to stop me by ms arrival would be 
arrogating to himself a better right than he allows me, and 
thereby violating the law of equality. 
J 251. The The same rule ought to be observed in regard to those 
f>ame right commou things which are consumed in using them. They 

190 



PRIVATE PROPERTY. 114 

belong to the person who first takes possession of them with book m. 
the intention of applying them to his own use : and a second, ■ ^°^'*' ^'' 
who comes after, has no right to take them from him. I re- in another 
pair to a common forest, and begin to fell a tree : you come °"®- 
in afterwards, and would wish to have the same tree : you 
cannot take it from me : for this would be arrogating to your- 
self a right superior to mine, whereas our rights are equal. [ 115 ] 
The rule in this case is the sam6 as that which the law of 
nature prescribes in the use of the productions of the earth 
before the introduction of property. 

The expenses necessary for the preservation or reparation j 252. Pw- 
of the things that belong to the public, or to a community, servation 
ought to be equally borne by all who have a share in them, ^^ "paira 
whether the necessary sums be drawn from the common p^^g^^™^, 
coffer, or that each individual contributes his quota. The 
nation, the corporation, and, in general, every collective body, 
may also establish extraordinary taxes, imposts, or annual 
contributions, to defray these expenses, — ^provided there be 
no oppressive exaction in the case, and that the money so 
levied be faithfully applied to the use for which it was raised. 
To this end, also, as we have before observed (§ 103), toll- 
duties are lawfully established. Highways, bridges, and 
causeways are things of a public nature, from which all who 
pass over them derive advantage : it is therefore just that all 
those pasengers should contribute to their support. 

We shall see presently that the sovereign ought to provide ; 253. Baty 
for the preservation of the public property. He is no less "»d right of 
obliged, as the conductor of the whole nation, to watch over *^? ^^7®" . 

Ai • t» t A • T»i reurn in this 

the preservation of the property of a corporation. It is the respect. 
interest of the state at large that a corporation should not 
fall into indigence by the ill conduct of its members for the 
time being. And, as every obligation generates the corre- 
spondent right which is necessary to discharge it, the sove- 
reign has here a right to oblige the corporation to conform to 
their duty. If, therefore, he perceives, for instance, that 
they suffer their necessary buildings to fall to ruin, or that 
they destroy their forests, he has a right to prescribe what 
they ought to do, and to put his orders in force. 

We have but a few words to say with respect to private § 254. Pri- 
property : every proprietor has a right to make what use he v**® p'^- 
pleases of his own substance, and to dispose of it as he^*^^^' 
pleases, when the rights of a third person are not involved 
in the business. The sovereign, however, as the father of 
his people, may and ought to set bounds to a prodigal, and 
to prevent his running to ruin, especially if this prodigal be 
the father of a fanmy. (65) But he must take care not to 

(65) In Great Britain no such right person, or defraads a person who has 
of interference existe, and a person may insured against fire. Co. LiL 254; Sa- 
lay waste or even b«m his own property, viUe*» case. For. 6, 3 Thomas Co. Lit 
unless he thereby endangers a third 243, n. (m).— C. 

191 



115 OF PUBLIC, COMMON, AND PRIVATB PROPERTY. 

BOOK X. extend this right of inspection so far as to lay a restraint on 
CHAP. xx. _ j^jg subjects in the administration of their affairs — ^which 
would be no less injurious to the true welfare of the state 
than to the just liberty of the citizens. The particulars of 
this subject belong to public law and politics. 
? 255. The It must also be observed, that individuals are not so per- 
aorereign fectly free in the economy or government of their affairs as 
it to reffoift! ^^* ^ ^® subject to the laws and regulations of police made 
tiona of po- by the sovereign. For instance, if vineyards are multiplied 
lice. to too great an extent in a country which is in want of corn, 

the sovereign may forbid the planting of the vine in fields 
proper for tillage ; for here the public welfare and the safety 
of the state are concerned. When a reason of such import- 
ance re(]^uires it, the sovereign or the magistrate may oblige 
[ 116 ] an individual to sell all the provisions in his possession above 
what are necessary for the subsistence of his family, and may 
fix the price he shall receive for them. (66^ The public au- 
thority may and ought to hinder monopolies, and suppress 
all practices tending to raise the price of provisions — ^to which 
practices the Romans applied the expressions annanam in- 
cenderey comprimere^ vexare. 
i 266. In- Every man may naturally choose the person to whom he 
beritanoes. ^ould Icavc his property after his death, as long as his right 
is not limited by some indispensable obligation — ^as, for in- 
stance, that of providing for the subsistence of his children. (67) 
The children also have naturally a right to inherit their fa- 
ther's property in equal proportions. But this is no reason 
why particular laws may not be established in a state, with 
regard to testaments and inheritances — a respect being, how- 
ever, paid to the essential laws of nature. Thus, by a rule 
estabhshed in many places with a view to support noble fami- 
lies, the eldest son is, of right, his father's principal heir. 
Lands perpetually appropriated to the eldest male heir of a 
family, belong to him by virtue of another right, which has 
its source in the will of the person who, being sole owner of 
those lands, has bequeathed them in that manner. 

(66) In Great Britftin no snoh inter- (67) In England a parent has an abao- 

ferenoe now takes place, though formerly lute right to devise or beqneaUi all his 

it was exercised. See 1 Bla. Com. property to a stranger in esclosion of 

287.— C. his children. 



192 



OV THS AUBKATION OT THS PUBUO PBOPKBTT. 116 



BOOK X. 
CBAP. XXI. 



CHAP. XXI. 

OP THB ALIENATION OF THE PUBLIC PROPERTY, OR THE 
DOMAIN, AND THAT OF A PART OF THE 8TATB. 

THE nation, being the sole mistress of the property in her j 257. The 
possession, may dispose of it as she thinks proper, and may station m*7 
lawfully alienate or mortgage it. This right is a necessary "^jjlj*** **■ 
consequence of the full and absolute domain: the exercise p^rty!^"*" 
of it is restrained by the law of nature only with respect to 
proprietors who have not the use of reason necessary for the 
management of their affairs ; which is not the case with a 
nation. Those who think otherwise, cannot allege any solid 
reason for their opinion ; and it would follow from their prin- 
ciples that no safe contract can be entered into with any na- 
tion ; — ^a conclusion which attacks the foundation of all public 
treaties. 

But it is very just to say, that the nation ought carefully j 268. Dn- 
to preserve her public property — ^to make a proper use of tiw of a n»- 
it — ^not to dispose of it without good reasons, nor to alienate ^^^ " *^ 
or mortgage it but for a manifest public advantage, or in case""^^*' 
of a pressing necessity. This is an evident consequence of 
the duties a nation owes to herself. The public property 
is extremely useful and even necessary to the nation ; and 
she cannot squander it improperly without injuring herself, 
and shamefully neglecting the duty of self-preservation. I 
speak of the public property, strictly so called, or the domain 
of the state. Alienating its revenues is cutting the sinews of 
government. As to the property common to all the citizens, 
the nation does an injury to those who derive advantage from 
it, if she alienates it without necessity, or without cogent [ 117 ] 
reasons. She has a right to do this as proprietor of these 
possessions ; but she ought not to dispose of them except in 
a manner that is consistent with the duties which the body 
owes to its members. 

The same duties lie on the prince, the director of the na- § 259. Dv. 
tion: he ought to watch over the preservation and prudent *»®" <>^ *^« 
management of the public property — to stop and prevent^™®*' 
all waste of it — ^and not suffer it to be applied to improper 
uses. 

The prince, or the superior of the society, whatever he is, j 26O. He 
being naturally no more than the administrator, and not the<)^o^ 
proprietor of the state, his authority, as sovereign or head of *^Jy^ *^* 
the nation, does not of itself give him a right to alienate orp^rty!**^ 
mortgage the public property. The general rule then is, that 
the superior cannot dispose of the public property, as to its 
substance — ^the right to do this bein^ reserved to the proprietor 
alone, since proprietorship is defined to be the right to dispose 

25 R 198 



117 OF THB ALIBNATXOK OV 

BOOK L of a thing substantially. If the superior exceeds his powero 
C HAP. X XI. ^[^i^ respect to this property, the alienation he makes of it 
will be invalid, and may at any time be revoked by his suc- 
cessor, or by the nation. This is the law generally received 
in France ; and it was upon this principle that the duke of 
Sully* advised Henry lY. to resume the possession of all the 
domains of the crown alienated by his predecessors. 
§ 261. The The nation, having the free disposal of all the property 
nation may belonging to her (§ 257), may convey her right to the sove- 
^bt to^iL ^^^> ^^^ consequently conier upon him that of alienating 
and mortgaging the public property. But this right not being 
necessary to the conductor of the state, to enable him to ren* 
der the people happy by his government — ^it is not to be pre- 
sumed that the nation have given it to him; and, if they have 
not made an express law for that purpose, we are to conclude 
that the prince is not invested with it, unless he has received 
full, unlimited, and absolute authority. 
5261. Rules The rules we have just established relate to alienations of 
on this sub- public property in favour of individuals. The question assumes 
^^J^^ "" a* diflferent aspect when it relates to alienations made by one 
treaties be- nation to anotheriy it requires other principles to decide it m 
tween na- the different cases that may present themselves. Let us en- 
Uon and deavour to give a general theory of them, 
nation. -j^^ j^ -^ necessary that nations should be able to treat and 

contract validly with each other, since they would otherwise 
find it impossible to bring their affairs to an issue, or to obtain 
the blessings of peace with any degree of certainty. Whence 
it follows, that, when a nation has ceded any part of its pro- 
perty to another, the cession ought to be deemed valid and 
[ 118 ] irrevocable, as in fact it is, in virtue of the notion of pro* 

i^erty. This principle cannot be shaken by any fundamental 
aw by which a nation might pretend to deprive themselves of 
the power of s^ienating what belongs to them : for, this would 
be depriving themselves of all power to form contracts with 
other nations, or attempting to deceive them. A nation with 
such a law ought never to treat concerning its property : if it 
is obliged to it by necessity, or determined to do it for its own 
advantage, the moment it broaches a treaty on the subject, it 
renounces its fundamental law. It is seldom disputed diat an 
entire nation may alienate what belongs to itself: but it is 
asked, whether its conductor, its sovereign, has this power ? 
The question may be determined by the fundamental laws* 
But, if the laws say nothing on this subject, then we have 
recourse to our second principle^ viz. 

2. If the nation has conferred the full sovereignty on its 
conductor — ^if it has intrusted to him the care, and, without 

* 8te his Memoirs. 

t Quod domania regnorum inalien- contra alias gentes diTino piivilegia 

abilia at semper revocabUia dtcuntur, opus fiiret. X<t6m£s, Prtrfat, ad Cad 

id ttsgetita privatOTam intelligitur ; nam Jur. GtnL, D^lcmaL 



THE PUBLIC FB0PBET7. 118 

reserre, given him the right, of treating and contracting with book x. 

other states, it is considered as having invested him with all p"^' ^l"- 

the powers necessary to make a valid contract. The prince 

is then the organ of the nation : what he does is considered 

as the act of the nation itself; and, though he is not the owner 

of the public property, his alienations of it are valid, as being 

tluJy authorized. 

The question becomes more distinct, when it relates, not to §263. Alien- 
the alienation of some parts of the public property, but to ^^^ ^^ » 
the dismembering of the nation or state itself — the cession P^**^*® 
of a town or a province that constitutes a part of it. This ' 
question, however, admits of a sound decision on the same 
principles. A nation ought to preserve itself (§ 26) — ^it ought 
to preserve all its members — it cannot abandon them ; and it 
is under an engagement to support them in their rank as mem- 
bers of the nation (§ 17). It has not, then, a right to traffic 
with their rank and liberty, on account of any advantages it 
may expect to derive from such a negotiation. They have 
joined the society for the purpose of being members of it — 
they submit to the authority of the state for the purpose of 
promoting in concert their common welfare and safety, and 
not of being at its disposal, like a farm or a herd of cattle. 
But the nation may lawfully abandon them in a case of ex- 
treme necessity ; and she has a right to cut them off from the 
body, if the public safety requires it. When, therefore, in 
such a case, the state gives up a town or a province to a 
neighbour or to a powerful enetnj^ the cession ought to remain 
valid as to the state, since she had a right to make it: nor 
can she any longer lay claim to the town or province thus 
alienated, since she has relinquished every right she could 
have over it. 

But the province or town thus abandoned and dismembered § .264. 
from the state, is not obliged to receive the new master whom ^J^^*^. 
the state attempts to set over it. Being separated from the ^^^^ ^^y\ 
society of which it was a member, it resumes all its original 
rights ; and if it be capable of defending its liberty against 
the prince who would subject it to his authority, it may law- 
fully resist him. Francis I. having engaged, by the treaty [ 119 ] 
of Madrid, to cede the duchy of Surgundy to the emperor 
Charles V., the states of that province declared, ^^ that, hav- 
ing never been subject but to the crown of France, they would 
die subject to it ; and that, if the king abandoned them, they 
would take up arms, and endeavour to set themselves at lib- 
erty, rather than pass into a new state of subjection."* It 
is true, subjects are seldom able to make resistance on such 
occasions ; and, in general, their wisest plan will be to submit 
to their new master, and endeavour to obtain the best terms 
they can. 

* Mezenv's Historj of France, rol. ii. p. 458. 

196 



119 OF THB ALIBNATIOK OF THE PUBLIO PROPBRTT. 

BOOK I. Has the prince, or the superior of whatever kind, a power 
CHAP. XXI. to dismember the state ? We answer as we have done wifli 
r 2e5. respect to the domain : — ^if the fundamental laws forbid all 
Whether dismemberment by the sovereign, he cannot do it without the 
the prince concurrence of the nation or its representatives. But, if the 
has power jj^^g gj^ silent, and if the prince has received a full and ab- 
bcr th^*™" solute authority, he is then the depositary of the rights of the 
state. nation, and the organ by which it declares its will. The na. 

tion ought never to abandon its members but in a case t)f 
necessity, or with a view to the public safety, and to preserve 
itself from total ruin ; and the prince ought not to give them 
up except for the same reasons. But, since he has received 
an absolute authority, it belongs to him to judge of the neces- 
sity of the case, and of what the safety of the state requires. 
On occasion of the above-mentioned treaty of Madrid, the 
principal persons in France, assembled at Oognag after the 
king's return, unanimously resolved, " that his authority did 
not extend so far as to dismember the crown."* The treaty 
was declared void, as being contrary to the fundamental law 
of the kingdom : and, indeed, it had been concluded without 
sufficient powers : for, as the laws in express terms refused to 
the king the power of dismembering the kingdom, the con- 
currence of the nation was necessary for that purpose ; and it 
might give its consent by the medium of the states-general. 
Charles V. ought not to have released his prisoner before 
those very states had approved the treaty ; or rather, making 
a more generous use of his victory, he should have imposed 
less rigorous conditions, such as Francis I. would have beer. 
able to comply with, and such as he could not, without dis- 
honour, have refused to perform. But now that there are no 
longer any meetings of the states-general in France, the king 
remains the sole organ of the state, with respect to other 
powers : these latter have a right to take his will for that of 
all France; and the cessions the king might make them 
would remain valid, in virtue of the tacit consent by which 
the nation has vested the king with unlimited powers to treat 
with them. Were it otherwise, no solid treaty could be en- 
tered into with the crown of France. For greater security, 
[ 120 ] however, other powers have often req aired that their treaties 
should be registered in the parliament of Paris ; but at present 
even this formality seems to be laid aside. 

* Mezeray's Histoiy of Franoe, roL iL p. i58. 



196 



OF RIVEBS, STREAMS; AND LAKES. 120 



BOOK I. 

CHAP. xxn. 



CHAP. xxn. 

OF RIVERS, STREAMS, AND LAKES. 

WHEN a nation takes possession of a country, with a view j 266. A ri- 
te settle there, it takes possession of every thing included in ^er that se- 
it, as lands, lakes, rivers, &c. But it may happen that the P*^*«» *^o 
country is bounded and separated from another by a river ; in 
which case, it is asked, to whom this river belongs. It is 
manifest, from the principles established in Chap. XYIII., that 
it ought to belong to the nation who first took possession of 
it. This principle cannot be denied; but the difiiculty is, to 
make the application. It is not easy to determine which of 
the two neighbouring nations was the first to take possession 
of a river that separates them. For the decision of such 
questions, the rules which may be deduced from the principles 
of the law of nations are as follow : — 

1. When a nation takes possession of a country bounded 
by a river, she is considered as appropriating to herself the 
river also : for, the utility of a river is too great to admit a 
supposition that the nation did not intend to reserve it to her- 
self. Consequently, the nation that first established her do- 
minion on one of the banks of the river is considered as being 
the first possessor of all that part of the river which bounds 
her territory. When there is question of a very broad river, 
this presumption admits not of a doubt, so far, at least, as 
relates to a part of the river's breadth ; and the strength of 
the presumption increases or diminishes in an inverse ratio 
with the breadth of a river ; for, the narrower the river is, 
the more does the safety and convenience of its use require 
that it should be subject entirely to the empire and property 
of that nation. (68) 

2. If that nation has made any use of the river, as, for 
navigating or Ashing, it is presumed with the greatest cer- 
tainty that she has resolved to appropriate the river to her 
own use. 

8. If, of two nations inhabiting the opposite banks of the 
river, neither party can prove that they themselves, or those 
^hose rights they inherit, were the first settlers in those 
tracts, it is to be supposed that both nations came there at 
the same time, since neither of them can give any reason for 
claiming the preference ; and in this case the dominion of 
each will extend to the middle of the river. (^) 

(6S) As regards private rights, there Doug. 411. {Palmer r. Hieke, 6 Johns. 
is no legal presumption that the soil Kep. 133.} 

of a navigable river belongs to the own- (1) { 6 Wheat Rep. 374, 379 } 3 Mass. 
«n of the adjoining lands, ex utraqtte Rep. 147.} 
parte, or otherwise. Rex r. Smith, 2 

r2 197 



120 OF RIVERS, 8TRBAM», AND LAKB8. 

BOOK L 4. A long and undisputed possession establishes the right 
oHAP. xxn. ^^ nations, (69^ otherwise there could be no peace, no stabi- 
lity between tnem ; and notorious facts must be admitted to 
prove the possession. Thus, when from time immemorial a 
nation has, without contradiction, exercised the sovereignty 
[ 121 ] upon a river which forms her boundary, nobody can dis- 
pute with that nation the supreme dominion over the river in 
question. 

6. Finally, if treaties determine any thing on this question, 
they must be observed. To decide it by accurate and express 
stipulations, is the safest mode ; and such is, in fact, the me- 
thod taken by most powers at present. 
i 267. Of If a river leaves its bed, whether it be dried up or takes 
the bed of aits course elscwhcre, the bed belongs to the owner of the 
i8^<iWodu^^ river ; for, the bed is a part of the river ; and he who had 
or ukes an- appropriated to himself the whole, had necessarily appro- 
other ooune.priated to himself all its parts. 

J 268. The If a territory which terminates on a river has no other 
right of ai- boundary than that river, it is one of those territories that 
avion. (70) j^^^^ natural or indeterminate bounds {territoria arcifinia)^ 
and it enjoys the right of alluvion ; that is to say, every ^ra- 
dual increase of soil, every addition which the current of the 
river may make to its bank on that side, is an addition to 
that territory, stands in the same predicament with it, and 
belongs to the same owner. For, if I take possession of a 
piece of land, declaring that I will have for its boundary the 
river which washes its side,— or if it is given to me upon 
that footing, — ^I thus acquire, beforehand, the right of aUu- 
vion ; and, consequently, I alone may appropriate to myself 
whatever additions the current of the river may insensibly 
make to my land: — I say ^^ insensibly^*' because in the very 
uncommon case called avulsion^ when the violence of the 
stream separates a considerable part from one piece of land 
and joins it to another, but in such manner that it can stiU 
be identified, the property of the soil so removed naturally 
continues vested in its former owner. The civil laws have thus 
provided against and decided this case, when it happens be- 
tween individual and individual ; they ought to unite equity with 
the welfare of the state, and the care of preventing litigations. 
In case of doubt, every territory terminating on a river is 
presumed to have no other boundary than the river itself; 
because nothing is more natural than to take a river for a 

(69) As to what is a sufficiently long 178; 4 DowL A Ry. 790; 3 Barn. 4 
and undisturbed possession, by the law Ores. 91, S. C; 5 Bing. 163, 169; 1 
of France, Jersey, and England, in Thomas Co. Lit 47, in note ; Scultcs on 
general, see Bentat v. Pipon, Knapp's Aquatic Rights ; Chitty's General Prac- 
Rep. 67. tice, 199, 200. {2 Johns. Rep. 322; 3 

(70) As to the rights of allnvion, or Mass. Rep. 325 ; 2 Hall's L. Journ. 307 ; 
avdden derelict in general, see The King 5 Hall's L. Journ. 1, 113. ( 

V. Yarhoroughf 1 Dow Rep. New Series, 
198 



OF RIVBRS, STREAMS, AND LAKES. 121 

boundary, when a settlement is made ; and wherever there is book i. 
a doubt, that is always to be presumed which is most natural ^^' ^"°' 
and most probable. 

As soon as it is determined that a river constitutes the j 269. Wha- 
boundary line between two territories, whether it remains com- ther aUu- 
mon to the inhabitants on each side of its banks, or whether ^»<>'» P"*- 
each shares half of it, or, finally, whether it belongs ^i^tirely ^^^' ^ 
to one of them, their rights with respect to the river are in the right to 
no wise changed by the alluvion. If, therefore, it happens, a nyer. 
tibat, by a natural effect of the current, one of the two terri- 
tories receives an increase, while the river gradually en- 
croaches on the opposite bank, the river still remains the na- 
tural boundary of the two territories, and notwithstanding 
the progressive changes in its course, each retains over it the 
same rights which it possessed before ; so that, if, for instance, 
it be divided in the middle between the owners of the oppo- 
site banks, that middle, though it changes its place, will con- 
tinue to be the line of separation between the two neighbours. 
The one loses, it is true, while the other gains ; but nature 
alone produces this change : she destroys the land of the one, [ 122 ] 
while she forms new land for the other. The case cannot be 
otherwise determined, since they have taken the river alone 
for their limits. 

But if, instead of a gradual and progressive change of its j 270. 
bed, the river, by an accident merely natural, turns entirely What is the 
out of its course, and runs into one of the two neighbouring*^"® 7^®° 
states, the bed which it has abandoned becomes, thencefor-^®^®^^ 
ward, their boundary, and remains the property of the for- bed. 
mer owner of the river (§ 267) ; the river itself is, as it were, 
annihilated in all that part, while it is reproduced in its new 
bed, and there belongs only to the state in which it flows. 

This case is verv different from that of a river which 
changes its course without going out of the same state. The 
latter, in its new course, continues to belong to its former 
owner, whether that owner be the state, or any individual to 
whom the state has given it ; because rivers belong to the 
public in whatever part of the country they flow. Of the 
bed which it has abandoned, a moiety accrues to the contigu- 
ous lands on each side, if they are lands that have natural 
boundaries, with the right of alluvion. That bed (notwith- 
standing what we have said in § 267) is no longer the pro- 
perty of the public, because of the right of alluvion vested 
in the owners of its banks, and because the public held pos- 
session of the bed only on account of its containing a river. 
But, if the adjacent lands have not natural boundaries, the 
public still retains the property of the bed. The new soil 
over which the river takes its course is lost to the proprietor, 
because all the rivers in the country belong to the public. 

It is not allowable to raise any works on the bank of aj27i. 
river, which have a tendency to turn its course, and to cast Works 

199 



122 OF RIVERS, STREAMS, AND LAKES. 



BOOK I. it upon the opposite bank: this would be promoting our own 
: advantage at our neighbour's expense. Each can only secure 



CHAP. XXII. , 



tending to himself, and hinder the current from undermining and carry-t 

tarn the jng ^^^y J^Jg l^n^J^ ^72) 

T^T^or In ^^ general, no person ought to build on a river, any more 
genenJ, ' than elsewhere, any work that is prejudicial to his neigh- 
prejudicial bour's rights* If a river belongs to one nation, and another 
to tiie rights i^^g an incontestiblc right to navigate it, the former cannot 
(73^ ^^ erect upon it a dam or a mill which might render it unfit for 
navigation. The right which the owners of the river possess 
in this case is only that of a limited property ; and, in the 
exercise of it, they are bound to respect the rights of others. 
i 273. Rules But, when two different rights to the same thing happen to 
in relation clash with cach Other, it is not always easy to determine 
T ^if*^ which ought to yield to the other : the point cannot be satis- 
^ ^ ^' factorily decided, without attentively considering the nature 
of the rights, and their origin. For example, a river belongs 
to me, but you have a right to fish in it : and the question is, 
whether I may erect mills on my river, whereby the fishery 
will become more difficult and less advantageous ? The na- 
[ 123 ] ture of our rights seems to determine the question in the 
affirmative. I, as proprietor, have an essential right over the 
river itself: — ^you have only a right to make use of it — ^a 
right which is merely accessory, and dependent on mine ; you 
have but a general right to fish as you can in my river, such 
as you happen to find it, and in whatever state I may think 
fit to possess it. I do not deprive you of your right by erect- 
ing my mills : it still exists in the general view of it ; and, 
if it becomes less useful to you, it is by accident, and because 
it is dependent on the exercise of mine. (74) 

The case is different with respect to the right of naviga- 
tion, of which we have spoken. This right necessarily sup- 
poses that the river shall remain free and namgabUj and 
therefore excludes every work that will entirely interrupt its 
navigation. 

The antiquity and origin of the rights serve, no less than 
their nature, to determine the question. The more ancient 

(71) This principle of the law of in the current. Rex v. Pogham, 8 Bfun. 
nations has been ably discussed as part A Cress. 355 ; Rex r. Traffordj 1 Bam. 
of the municipal law of Scotland and A Adolph. 874; 2 Man. A Ryl. 468; 1 
England in Jfetutiet t. BreadalbaTte, Moore A 8cott» 401 ; 8 Bang. 204, (in 
3 Wils. A Shaw, 235; and tee Tke error.) 

King V. Lord Yarborongh, 1 Dow. Rep.^ (73) See note 72. 

New Series, 179: and Wright y. Ilotc- (74) But this doctrine seems ques- 

ard, 1 Sira. A Stu. 190 ; Rex r. Traf- tionable. See Wright ▼. Howardf 1 Sim. 

ford, 1 Bam. A Adolph. 874, and Chit< A Stu. 190 ; and Jfoson v. JSill, 3 Barn, 

ty's General PracUco, 610. {4 DaU. A Adolph. 304; Chitty's Oeneral Prao. 

liep. 211 ; 13 Mass. 420, 507; 3 Har. A 191, 192. Eren a right of irrigating at 

McHen. 441; 2 Conn. Rep. 584; Coxe's reasonable times may qualify the abso- 

Rep. 460. { lute and general right to the use of tho 

(72) That is permitted as well as a water for working a mill, 
bank or grooye to prevent ao alt^r^ti^n 

200 



OF KIYERS, STREAMS, AND LAESS. 128 

right, if it be absolute, is to be exerted in its full extent, and 'ook i. 
the other only so far as it may be extended without prejudice ^^^' ^"'* 
to the former ; for, it could only be established on this foot- 
ing, unless the possessor of the first right has expressly con- 
sented to its being limited. 

In the same manner, rights ceded by the proprietor of any 
thing are considered as ceded without prejudice to the other 
rights that belong to him, and only so far as they are consist- 
ent with these latter, unless an express declaration, or the 
Tery nature of the right, determine it otherwise. If I have 
ceded to another the right of fishing in my river, it is mani- 
fest that I have ceded it without prejudice to my other rights, 
and that I remain free to build on that river such works as I 
think proper, even though they should injure the fishery, pro- 
vided they do not altogether destroy it. (75) A work of this 
latter kind, such as a dam that would hinder the fish from 
ascending it, could not be built but in case of necessity, and 
on making, according to circumstances, an adequate compen- 
sation to the person who has a right to fish there. 

What we have said of rivers and streams, may be easily i 274. 
applied to lakes. Every lake, entirely included in a country, ^^^^ 
belongs to the nation that is the proprietor of that country ; 
for in taking possession of a territory, a nation is considered as 
having appropriated to itself every thing included in it ; and, 
as it seldom happens that the property of a lake of any con- 
siderable extent falls to the share of individuals, it remains 
common to the nation. If this lake is situated between two 
states, it is presumed to be divided between them at the mid- 
dle, while there is no title, no constant and manifest custom, 
to determine otherwise. 

What has been said of the right of alluvion, in speaking of j 276. Ih- 
rivers, is also to be understood as applying to lakes. When cre"« o^ * 
a lake which bounds a state belongs entirely to it, every in-^*^** 
crease in the extent of that lake falls under the same predi- 
cament as the lake itself; but it is necessary that the increase 
should be insensible, as that of land in alluvion, and moreover 
that it be real, constant, and complete. To explain myself more 
fully, — 1. 1 speak of insensible increase : this is the reverse of 
alluvion ; the question here relates to the increase of a lake, as, [ 124 ] 
in the other case, to an increase of soil. If this increase be 
not insensible, — ^if the lake, overflowing its banks, inundates a 
large tract of land, this new portion of the lake, this tract thus 
covered with water, still belongs to its former owner. Upon 
what principles can we found the acquisition of it in behalf of the 
owner of the lake? The space is very easily identified, though 
it has changed its nature : and it is too considerable to admit a 
presumption that the owner had no intention to preserve it to 
himself, notwithstanding the changes that might happen to it. 

(75) See note 74, ante, p. 122. 
29 201 



124 OP RIVEBS, BTBEAH8, AKB LAKES. 

BOOK I. But, 2. If the lake insensibly undermines a part of the 
CHAP. xxiL opposite territory, destroys it, and renders it impossible to be 
known, by fixing itself there, and adding it to its bed, that 
part of the territory is lost to its former owner ; it no longer 
exists ; and the whole of the lake thus increased still belongs 
to the same state as before. 

3. If some of the lands bordering on the lake are only oyer- 
flowed at high water, this transient accident cannot produoe 
any change in their dependence. The reason why the soil 
which the lake invades by little and little belongs to the owner 
of the lake and is lost to its former proprietor, is, because 

^ the proprietor has no other boundary than the lake, nor any 
other marks than its banks, to ascertain how far his posses- 
sions extend. If the water advances insensibly, he loses ; if 
it retires in like manner, he gains : such must have been the 
intention of the nations who have respectively appropriated 
to themselves the lake and the adjacent lands : — it can scarce- 
ly be supposed that they had any other intention. But a 
territory overflowed for a time is not confounded with the 
rest of the lake : it can still be recognised ; and the owner 
may still retain his right of property in it. Were it other- 
wise, a town overflowed by a lake would become subject to a 
different government during the inundation, and return to its 
former sovereign as soon as the waters were dried up. 

4. For the same reasons, if the waters of the lake, pene- 
trating by an opening into the neighbouring country, there 
form a bay, or new lake, joined to the first by a canal, this 
new body of water and the canal belong to the owner of the 
country in which they are formed. For the boundaries are 
easily ascertained : and we are not to presume an intention 
of relinquishing so considerable a tract of land in case of its 
happening to be invaded by the waters of an adjoining lake. 

It must be observed that we here treat the question as 
arising between two states : it is to be decided by other princi- 
ples when it relates to proprietors who are members of the 
same state. In the latter case, it is not merely the bounds 
of the soil, but also its nature and use, that determine the 
possession of it. An individual who possesses a field on the 
borders of a lake, cannot enjoy it as a field when it is over- 
flowed ; and a person who has, for instance, the right of fish- 
ing in the lake, may exert his right in this new extent : if the 
[ 125 ] waters retire, the field is restored to the use of its former 
owner. If the lake penetrates by an opening into the low 
lands in its neighbourhood, and there forms a permanent in- 
undation, this new lake belongs to the public, because all 
lakes belong to the public. 
; 270. Land The Same principles show, that if the lake insensibly forma 
fcmed on an acccssion of land on its banks, either by retiring or in any 
*f^ ^^ other manner, this increase of land belongs to the country 
^ * ** which it joins, when that country has no other boundary than 

202 



OF THE BBA. 



126 



It is the same thing as alluvion on the banks of book i. 

" CHAP. XXII. 



the lake, 
the river. 

But, if the lake happened to be suddenly dried up, either 1 277. Bed 
totally or in a great part of it, the bed would remain in the ^* ^*^* 
possession of the sovereign of the lake ; the nature of the soil, ^ "^' 
so easily known, 8u£Sciently marking out the limits. 

The empire or jurisdiction over lakes and rivers is subject J 27s. Ju- 
to the same rules as the property of them, in all the cases ™^^'' 
which we have examined. Each state naturally possesses it^^'riven. 
over the whole or the part of which it possesses the domain. 
We have seen (§ 246) that the nation, or its sovereign, com- 
mands in all places in its possession. 



CHAP. xxm. 

OF THE SEA. (76) 



CHAP. xxin. 



IN order to complete the exposition of the principles of the j 279. Tkj 
law of nations with respect to the things a nation may pos- "«•» "»^ »*» 
sess, it remains to treat of the open sea. The use of the open '***' 
sea consists in navigation, and in fishing ; along its coasts it 
is moreover of use for the procuring of several things found 
near the shore, such as shell-fish, amber, pearls, &c., for the 



(76) As to tiie dominion of the main 
lOMy and right to limit the passage there- 
oa. Mid the claim of the English in the 
British seas and elsewhere, in general, 
see the aaihorities colleoted in 1 Chitty's 
Commercial Law, 88 to 108. With re^ 
speot to the view taken by the Engluh 
law of rights in and connected with the 
sea and sea-shore, the doctrine is, that 
the sea is the property of the king ; and 
that so is the land beneath, except such 
pMi of that land as is capable of being 
oMfoUy oecapied without prejudice to 
navigation, and of which a subject has 
either had a grant from the king, or 
has so exoluaiveltf nsed it fbr so long a 
time as to confer on him a title by pro- 
scription. In the latter case, a pre- 
sumption is raised that the king has 
either granted him an exclusive right 
to it, or has permitted him to have pos- 
session of it, and to employ his money 
and labour upon lt» so as to confer upon 
him a title by occupation, the founda- 
tion of most of the rights to property In 
land. This is the law of England, and 
also of Jersey, and some other islands 
belonging to Great Britain. Benut r. 



Pipon, Knapp's Rep. 67; BlundeU v. 
CotUrcdl, 5 Bar. k Aid. 268 ; and TU 
King v. Lvrd Yarhorough, 3 Bar. A Ores. 
91, and 1 Bow's Appeal Cases, Kew 
Series, 178. In the first mentioned case, 
it was decided that the lord of a manor 
oannot establish a claim to the exclusive 
right of cutting sea-weed on rocks below 
loW'ioater mark, except by a grant from 
the king, or by such long and undis- 
turbed enjoyment of it (viz. at least for 
twenty yeare continuously) as to give 
him a title by prescription; and that 
the possession necessary to constitute a 
title by prescription must be uninter- 
rupted and peaceable, both according to 
the law of Englandf the civil law, aTid 
tho9e of France, Normandy, and Jeraey, 
But, where artificial cuts or recesses 
have been made on the sea-shore, into 
and over which the sea aftorwards flows, 
then, in the absence of proof as to acts 
of ownership, the soQ of these recesses 
is to be presumed to have belonged to 
the owner of the adjacent estate, and 
not to the crown. Lower, Oovett, 3 Bar. 
it AdoL 863.-0. 

203 



125 OF THB SEA. 

BOOK I. making of salt, and finally, for the establishment of places of 
CHAP. XXIII. retreat ^nd security for vessels. 

§ 280. Whe- The open sea is not of such a nature as to admit the holding 
ther the sea posscssion of it, siucc no settlement can be formed on it, so 
can b© pes- ^s to hinder others from passing. But a nation powerful at 
fteTomf"*^ sea may forbid others to fish in it and to navigate it ; declar- 
nion appro- ing that shc appropriates to herself the dominion over it, and 
priated. that shc will destroy the vessels that shall dare to appear in 
it without her permission. Let us see whether she haa a right 
to do this. 
; 281. No- It is manifest that the use of the open sea, which consists 
body has a in navigation and fishing, is innocent and inexhaustible ; that 
"^^*-*te*to ^® *^ ^^y — ^® ^^^ navigates or fishes in the open sea does no 
hinSetf the ^^J^^'J *^ ^^7 ^^^5 ^^^ the sea, in these two respects, is suffi- 
use of the cient for all mankind. Now, nature does not give to man a 
open aea. right of appropriating to himself things that may be inno- 
cently used, and that are inexhaustible, and sufficient for all. 
For, since those things, while common to all, are sufficient to 
supply the wants of each, — ^whoever should, to the exclusion 
of all other participants, attempt to render himself sole pro- 
r 126 ] prietor of them, would unreasonably wrest the bounteous gifts 
of nature from the parties excluded. The earth no longer 
furnishing, without culture, the things necessary or useful to 
the human race, who were extremely multiplied, it became 
necessary to introduce the right of property, in order that 
each might apply himself with more success to the cultivation 
of what had fallen to his share, and multiply, by his labour, 
the necessaries and conveniences of life. It is for this reason 
the law of nature approves the rights of dominion and pro- 
perty, which put an end to the primitive manner of living in 
common. But this reason cannot apply to things which are 
in themselves inexhaustible; and, consequently, it cannot 
furnish any just grounds for seizing the exclusive possession 
of them. If the free and common use of a thing of this na- 
ture was prejudicial or dangerous to a nation, the care of their 
own safety would authorize them to reduce that thing under 
their own dominion, if possible, in order to restrict the use 
of it by such precautions as prudence might dictate to them. 
But this is not the case with the open sea, on which people 
may sail and fish without the least prejudice to any person 
whatsoever, and without putting any one in danger. No 
nation, therefore, has a right to take possession of the open 
sea, or claim the sole use of it, to the exclusion of other 
nations. The kings of Portugal formerly arrogated to them- 
selves the empire of the seas of Guinea and the East Indies ;"*" 
but the other maritime powers gave themselves little trouble 
about such a pretension. 

The right of navigating and fishing in the open sea being 

* See Grotius's Mare Liberum, and Selden's Mare ClanBum, tib. i. eap. xvii. 
204 



OF THE SEA. 126 

then a riglit common to all men, the nation that attempts to book i. 
exclude another from that advantage does her an injury, and ^"f ^' ^^'"' 
furnishes her with sufficient grounds for commencing hostili- i 282. The 
ties, since nature authorizes a nation to repel an injury — that "**^^^ *^** 
is, to make use of force against whoever would deprive her ^^i™de' ^ 

of her rights. another, 

Nay, more, — a nation, which, without a legitimate claim, does it an 
would arrogate to itself an exclusive right to the sea, and ^^^' , 
support its pretensions hy force, does an injury to all nations ; l^^^ '^^^ 
it infringes their common right ; and they are justifiable in an injury to 
forming a general combination against it, in order to repress all nations, 
such an attempt. Nations have the greatest interest in caus- 
ing the law of nations, which is the basis of their tranquil- 
lity, to be universally respected. If any one openly tram- 
ples it under foot, they all may and ought to rise up against 
him ; and, by uniting their forces to chastise the common 
enemy, they will discharge their duty towards themselves, 
and towards human society, of which they are members 
(Prelim. §22). 

However, as every one is at liberty to renounce his right, ; 284. it 
a nation may acquire exclusive rights of navigation and fish- ™»y aoqufaro 
ing, by treaties, in which other nations renounce in its favour f®*?^'*"^® 
the rights they derive from nature. The latter are obliged ^^^^f. 
to observe their treaties ; and the nation they have favoured 
has a right to maintain by force the possession of its advan- 
tages. Thus, the house of Austria has renounced, in favour [ 127 ] 
of England and Holland, the right of sending vessels from 
the Netherlands to the East Indies. In Or otitis, de Jure 
Belli et Pads, lib. ii. cap. iii. § 15, may be found many 
instances of similar treaties. 

As the rights of navigation and of fishing, and other rights 2 285. bat 
which may be exercised on the sea, belong to the class of ^^\ V P"" 
those rights of mere ability {jura merce faeuUatis), which ^"J^j^^r 
are imprescriptible (§ 95), they cannot be lost for want of use. use,(77) 
Consequently, although a nation should happen to have been, 
from time immemorial, in sole possession of the navigation 
or fishery in certain seas, it cannot, on this foundation, claim 
an exclusive right to those advantages. For, though others 
have not made use of their common right to navigation and 
fishery in those seas, it does not thence follow that they have 
had any intention to renounce it ; and they are entitled to 
exert it whenever they think proper. (78) 

But it may happen that the non-usage of the right may} 286. un- 
asBume the nature of a consent or tacit agreement, and thus ^•" ^ ^- 
become a title in favour of one nation against another, When^J^^^* 
a nation that is in possession of the navigation and fishery 

(77) See obserrations and authoritieSi tion not succeMfally litigated will pre- 
1 Ohit^ Com. L. 287, n. 4, 6. vent a right, aee the Judgment in Benett 

(78) Afl to the effect of twenty years' y. Fipon, Enapp'a Rep. 67. — C. 
aaintermpted use, and what intermp- 

S 206 



127 OP THE SBA. 

BOOK I. in certain tracts of sea claims an exclasiye right to them, and 
CHAP, xxm. fQr^(i[g all participation on the part of other nations, — ^if the 
others obey that prohibition with sufScient marks of acquies- 
cence, they tacitly renounce their own right in favour oi that 
nation, and establish for her a new rights which she may after- 
wards lawfully maintain against them, especially when it ia 
confirmed by long use. (79) 
; 287. The The various uses of the sea near the coasts render it very 
sea near the gugoeptible of property. It furnishes fish, shells, pearls, am- 
h^DomTt^ her, «c. Now, in all these respects, its use is not inexhausti- 
property. ble : wherefore, the nation, to whom the coasts belong, may 
appropriate to themselves, and convert to their own profit, 
an advantage which nature has so placed within their reach 
as to enable them conveniently to take possession of it, in 
the same manner as they possessed themselves of the domi- 
nion of the land they inhabit. Who can doubt that the pearl 
fisheries of Bahrem and Ceylon may lawfully become pro- 
perty ? And though, where the catching of fish is the only 
object, the fishery appears less liable to be exhausted, yet, it 
a nation have on their coast a particular fishery of a profita- 
ble nature, and of which they may become masters, shall they 
not be permitted to appropriate to themselves that bounteous 
gift of nature, as an appendage to the country they possess, 
and to reserve to themselves the great advantages which their 
commerce may thence derive in case there be a sufficient 
abundance of fish to furnish the neighbouring nations ? But 
if, so far from taking possession of it, the nation has once 
acknowledged the common right of other nations to come and 
fish there, it can no longer exclude them from it ; it has left 
that fishery in its primitive freedom, at least with respect to 
those who have been accustomed to take advantage of it. 
The English not having originally taken exclusive possession 
of the herring fishery on their coasts, it is become common 
[ 128 ] to them with other nations. 

; 288. An- A nation may appropriate to herself those things of which 
other reason the free and common use would be prejudicial or dangerous 
priaSf'^Uie ^ ^^^' ""-^^ ^® * second reason for which governments ex- 
sea bolder- ^^^^ ^^^^^ dominion over the sea along their coasts as far as 
ing on the they are able to protect their right. iS is of considerable im- 
coa8ts.(80) portance to the safety and welfare of the state that a general 
liberty be not allowed to all comers to approach so near their 
possessions, especially with ships of war, as to hinder the ap- 
proach of trading nations, and molest their navigation. Dor- 
mg the war between Spain and the United Provinces, James I., 
king of England, marked out along his coasts certain bound- 
' aries, within which he declared that he would not suffer any 
of the powers at war to pursue their enemies, nor even allow 

(79) See further, 1 Chit Com. L. 94, (80) See further, .1 Chit. Com. L. 92, 
n. 1 J ib. 98, s. 1.— C. n. 2 j ib. 94, n. 1 j ib. 95, n. 1 ; PoiT. b. 

3, c 3, 8. 6, p. 69.— C. 
206 



Of THB BBA. 128 



their armed vessels to stop and observe the ships that should book i. 
enter or sail out of the ports.* These parts of the sea, thus ^°*^' ""• 
subject to a nation, are comprehended in her territory ; nor 
must any one navigate them without her consent. But, to 
vessels that are not liable to suspicion, she cannot, without a 
breach of duty, refuse permission to approach for harmless 
purposes, since it is a duty incumbent on every proprietor to 
allow to strangers a free passage, even by land, when it may 
be done without damage or danger. It is true that the state 
itself is sole judge of what is proper to be done in every par- 
ticular case that occurs ; and, if it judges amiss, it is to 
blame : but the others are bound to submit. It is otherwise, 
however, in cases of necessity, — as, for instance, when a ves- 
sel is obliged to enter a road which belongs to you, in order 
to shelter herself from a tempest. In this case, the right of 
entering wherever we can, provided we cause no damage, or 
that we repair any damage done, is, as we shall show more at 
large, a remnant of the primitive freedom of which no man 
can be supposed to have divested himself; and the vessel 
may lawfully enter in spite of you, if you unjustly refuse her 
permission. 

It is not easy to determine to what distance a nation may ; 280. How 
extend its rights over the sea by which it is surrounded. Bo- ^^ ^^ p<»- 
dinusf pretends, that according to the common right of all**^^^"*^ 
maritime nations, the prince's dominion extends to the distance 
of thirty leagues from the coast. But this exact determina- 
tion can only be founded on a general consent of nations, 
which it would be difficult to prove. Each state may, on this 
head, make what regulation it pleases so far as respects the 
transactions of the citizens with each other, or their concerns 
with the sovereign : but, between nation and nation, all that 
can reasonably be said is, that in general, the dominion of the 
state over the neighbouring sea extends as far as her safety 
renders it necessary and her power is able to assert it ; since, 
on the one hand, she cannot appropriate to herself a thing 
that is common to all mankind, such as the sea, except so far 
as she has need of it for some lawful end (§ 281\ and, on the 
other, it would be a vain and ridiculous pretension to claim a [ 129 ] 
right which she were wholly unable to assert. The fleets of 
England have given room to her kings to claim the empire of 
the seas which surround that island, even as far as the opposite 
ooasts-t Selden relates a solemn act,§ by which it appears, 
that, in the time of Edward I., that empire was acknowledged 
by Uie greatest part of the maritime nations of Europe ; and 
the republic of the United Provinces acknowledged it, in some 

* Seidell's Mare Clanram, lib. ii. f In bis RepubliCi book L o. x. 

(SI) See farther, PaC b. 4, e. b, s. 9, | See Selden's Mare Claasum. 
pp. 167, 8; 1 Chit Com. L. 99, n. 1 ; } Ibid. lib. 2, oap. zzTiii. 
ib. 100, n. 1; ib. 101, n. 2; ib. 101, n. 
4 ; ib. 287, il 7 ; ib. 441, n. 5. 207 



129 OF THB 6BA. 

BOOK I. measure, by the treaty of Breda, in 1667, at least so far aq 
CHAP, xxiii. related to the honours of the flag. But solidly to establish i^ 
right of such extent, it were necessary to prove very clearly 
the express or tacit consent of all the powers concerned. The 
French have never agreed to this pretension of England ; and, 
in that very treaty of Breda just mentioned, Louis XIV. would 
not even suffer the channel to be called the English channel, 
or the British sea. The republic of Venice claims the empire 
of the Adriatic, and everybody knows the ceremony annually 
performed upon that account. In confirmation of this right 
we are referred to the examples of Uladislaus, king of Naples, 
of the emperor Frederic III., and of some of the kings of 
Hungary, who asked permission of the Venetians for their 
vessels to pass through that sea.* That the empire of the 
Adriatic belongs to the republic to a certain distance from her 
coasts, in the places of which she can keep possession, and of 
which the possession is important to her own safety, appears 
to me incontestable : but I doubt very much whether any^ 
power is at present disposed to acknowledge her sovereignty 
over the whole Adriatic sea. Such pretensions to empire are 
respected as long as the nation that makes them is able to 
assert them by force ; but they vanish of course on the decline 
of her power. At present the whole space of the sea within 
cannon shot of the coast is considered as making a part of 
the territory ; and, for that reason, a vessel taken under the 
cannon of a neutral fortress is not a lawful prize. (82) 
} 290. The shores of the sea incontestably belong to the nation 

Shores and that possesses the country of which they are a part ; and they 
ports. (83) belong to the class of public things. If civilians have set 
them down as things common to all mankind {res communes), 
it is only in regard to their use ; and we are not thence to 
conclude that they considered them as independent of the 
empire : the very contrary appears from a great number of 
laws. Ports and harbours are manifestly an appendage to 
and even a part of the country, and consequently are the 
property of the nation. Whatever is said of the land itself 
will equally apply to them, so far as respects the consequences 
of the domain and of the empire. 
§ 291. Bays All WO have Said of the parts of the sea near the coast, may 
and straitfl. be Said more particularly, and with much greater reason, of 
(.**) roads, bays, and straits, as still more capable of being pos- 

[ 130 ] sessed, and of greater importance to the safety of the country. 
But I speak of bays and straits of small extent, and not of 

* See Selden's Mare Claosum, lib. L right to cut sea-weed on rocks situate 
cap. xyi. below low-water mark, but by eipresa 

(82) Pottf b. 3, 0. 7, 1 132, p. 344.— 0. grant from the king, or uninterrupted 

(83) See further 1 Chitty's Com- presumption. Benttt v. Pxponj Knapp's 
mercial Law, 100, n. 2. The sea-ahoro, Rep. 67. 

below low-water mark, primd faeio be- (84) See 1 Ghitty's Commerolal Law, 

longs to the king and all his subjects, 100, n. 3.— C. 
and no subject can claim an exclusive 
208 



09 THB 8BA. 180 

those great tracts of sea to which these names are sometimes book i. 
given, as Hudson's Bay and the Straits of Magellan, over 5!i£ii2H?- 
which the empire cannot extend, and still less a right of pro- 
perty. A bay, whose entrance can be defended, may be pos- 
sessed and rendered subject to the laws of the sovereign ; and 
it is important that it should be so, since the country might 
be much more easily insulted in such a place, than on the 
coast that lies exposed to the winds and the impetuosity of 
the waves. 

It must be remarked, with regard to straits, that, when i 292. 
they serve for a communication between two seas, the naviga- ^^^ « 
tion of which is common to all, or several nations, the nation !^?"'*^* 
which possesses the strait cannot refuse the others a passage 
through it, provided that passage be innocent and attended 
with no danger to herself. By refusing it without just reasons, 
she would deprive those nations of an advantage granted them 
by nature ; and indeed, the right to such a passage is a rem- 
nant of the primitive liberty enjoyed by all mankind. No- 
thing but the care of his own safety can authorize the owner 
of the strait to make use of certain precautions, and to require 
certain formalities, commonly established by the custom of 
nations. He has a right to levy a moderate tax on the ves- 
sels that pass, partly on account of the inconvenience they 
give him, by obliging him to be on his guard — ^partly as a 
return for the safety he procures them by protecting them 
from their enemies, by keeping pirates at a distance, and by 
defraying the expense attendant on the support of light-houses, 
sea-marks, and other thin^ necessary to the safety of mari- 
ners. Thus, the king of Denmark requires a custom at the 
straits of the Sound. Such right ought to be founded on the 
same reasons, and subject to the same ruleS) as the tolls estab- 
lished on land, or on a river. (See §§ 103 and 104.) 

It is necessary to mention the right to wrecks — a right which ; 293. 
was the wretched offspring of barbarism, and which has almost ^^e^^ ^ 
everywhere fortunately disappeared with its parent. Justice ^'®®^^**^ 
and humanity cannot allow of it, except in those cases only 
where the proprietors of the effects saved from a wreck cannot 
possibly be discovered. In such cases, those effects belong to 
the person who is the first to take possession of them, or to 
the sovereign, if the law reserves them for him. 

If a sea is entirely enclosed by the territories of a nation, ? 294. a 
and has no other communication with the ocean than by a "^ enclosed 
channel of which that nation may take possession, it appears J^^^j^-J^j^^*^^ 
that such a sea is no less capable of being occupied, and be- a nation. 
coming property, than the land ; and it ought to follow the 

(S6) See 1 Chitty's Gomtnercial Law, in general modern cases, Ship Angusta, 
101, n. 1.— C. 1 Hagg. Rep. 16 ; and The Bailiffs, Ao., 

(Se) The right to wreck is not nnfre- of Dunwick r. Surry, 1 Bam. A Adolph. 
quentlj the subject of litigation in the 831. — 0. 
M unioipal Coorti of Great Britain ; see 

27 b2 209 



180 OF THE 8EA. 

BOOK I. fate of the country that surrounds it. The Mediterranean, 
CHAP. xxm. jjj former times, was absolutely enclosed within the territories 
of the Romans; and that people, by rendering themselves 
masters of the strait which joins it to the ocean, might subject 
the Mediterranean to their empire, and assume the dominion 
over it. They did not, by such procedure, injure the rights 
of other nations ; a particular sea being manifestly designed 
[ 131 ] by nature for the use of the countries and nations that sur- 
round it. Besides, by barring the entrance of the Mediter- 
ranean against all suspected vessels, the Romans, by one single 
stroke, secured the immense extent of their coasts : and this 
reason was sufficient to authorize them to take possession of 
it. And, as it had absolutely no communication but with the 
states which belonged to them, they were at liberty to permit 
or prohibit the entrance into it, in the same manner as into 
any of their towns or provinces. 
; 295. Tho When a nation takes possession of certain parts of the sea, 
parte of the [^ takes possession of the empire over them, as well as of the 
ed*by*a*" domain, on the same principle which we advanced in treating 
power are of the land (§ 205). These parts of the sea are within the 
within ite jurisdiction of the nation, and a part of its territory : the 
jg!!"^^°^^°' sovereign commands there ; he makes laws, and may punish 
^ ^ those who violate them ; in a word, he has the same rights 

there as on land, and, in general, every right which the laws 
of the state allow him. 

It is, however, true that the empire and the domainy or pro- 
perty ^ are not inseparable in their own nature, even in a sove- 
• reign state.* As a nation may possess the domain or pro- 
perty of a tract of land or sea, without having the sovereignty 
of it, so it may likewise happen that she shall possess the 
sovereignty of a place, of which the property or the domain, 
with respect to use, belongs to some other nation. But it is 
always presumed, that, when a nation possesses the useful 
domain of any place whatsoever, she has also the higher do- 
main And empire, or the sovereignty (§ 205). We cannot, 
however, from the possession of the empire, infer, with equal 
probability, a coexistent possession of the useful domain ; 
for, a nation may have good reasons for claiming the empire 
over a country, and particularly over a tract of sea, with- 
out pretending to have any property in it, or any useful do- 
main. The English have never claimed the property of all 
the seas over which they have claimed the empire. (88) 

(S7) Seo further, 1 Chitty's Commer- mercial Law, 101, 2, 3. As to tlie 

cial Law, 95, n. 3 ; GrotiuB, b. 2, c. 3, s. duty of ihe fiagj or the obUgatloa upon 

L3, p. 166. — C. other nations to pay a particular mark 

* See Book .II. \ 83. of respect to British men-of-war, by 

(88) As to the British seas, and the striking their flag or lowering their 

claims of the English of empire over topsail, formerly claimed, and so ob> 

the seas in general, see Selden's Mare noxious to foreign shipping, see id. 

Clausum, b. 2, c 1, p. 182, and other 101, 2; MoUoy, b. 1, c 5, ss. 11; and 

authorities collected 1 Cbitty's Com- see Postlewaite's Diet tit. Sea» Britiah ; 

210 



OF THB SEA. 181 

This is all we have to say in this first book. A more mi- book i. 
Dute detail of the duties and rights of a nation, considered in ^^^^' ^^'"^ 
herself, would lead ns too far. Such detail must, as we have 
already observed, be sought for in particular treatises on the 
public and political law. We are very far from flattering 
ourselves that we have omitted no important article ; this 
is a slight sketch of an immense picture : but an intelligent 
reader will without difficulty supply all our omissions by mak- 
ing a proper application of the general principles : we have 
taken the utmost care solidly to establish those principles, 
and to develop them with precision and perspicuity. v 

Marten't L. Nat. 168, 9—172, 175 ; Com. tween ships, see Court de Droit Public 

Big. NayigatioD, A. And, as to the Inttrne et Exteme, torn. 2, p. 80 to 94» 

French view of the right of the sea, and id. 396 to 406.— C. 
asd of the respects to be obserred be- 

211 



188 



BOOK II. 

OP A NATION CONSIDERED IN ITS RELATION TO 
OTHERS. 



CHAP. I. 

CHAP. "! ^^ ^^^ COMMON DUTIES OP A NATION TOWARDS OTHERS ; OR, 
'—^ OP THE OFFICES OP HUMANITY BETWEEN NATIONS. 



1 1. Foun- 1 HE following maxims will appear very strange to cabinet 
dation of politicians ; and such is the misfortune of mankind, that, to 
i^ti^'^^T^T many of those refined conductors of nations, the doctrine of 

and mutual i.*, •iii i« «»«i»i ■«• 

duties of this chapter will be a subject of ridicule. Be it so ; but we 
nations. will, nevertheless, boldly lay down what the law of nature 
prescribes to nations. Shall we be intimidated by ridicule, 
when we speak after Cicero ? That great man held the reins 
of the most powerful state that ever existed ; and in that 
station he appeared no less eminent than at the bar. The 
punctual observance of the law of nature he considered as 
the most salutary policy to the state. In my preface, I have 
already quoted this fine passage — Nihil est quod adhuc de 
republica putem dictum^ et quo possim longius progredt, nisi 
sit confirmatumy non modofalsum esse illudy sine injuria non 
posscy sed hoc verissimuniy sine summa justitia rempublieam 
regi non posse,* I might say on good grounds, that, by the 
words summa justitia^ Cicero means that universal justice 
which consists in completely fulfilling the law of nature. But 
in another place he explains himself more clearly on this 
head, and gives us sufficiently to understand that he does not 
[ 134 ] confine the mutual duties of men to the observance of justice, 
properly so called. "Nothing," says he, "is more agree- 
able to nature, more capable of affording true satisfaction, 
than, in imitation of Hercules, to undertake even the most 
arduous and painful labours for the benefit and preservation 
of all nations." Magis est secundum naturamj pro omnibtut 
gentibuSy si fieri possity conservandis aut juvandisy maximos 
lahores molestiasque suscipere, imitantem Herculem illume 
quern hominum famay beneficiorum memory in concilium ec^ 
lestium collocavity quam vivere in solitudincy non modo sine 

* Pragm. ez Ub. iL De Republioa. 
213 



COMMON DUTIES OF A NATION, BTC. 184 

ullis moletttiSy sed etiam in maximiB voluptatibuSy abundan- book n. 
tem amntbuM eopits^ ut ezeeUaa etiam pulchritudine et viribtis, ^^^^' '• 
Quodrea optima quisque et splendidissimo ingenio longe ittam 
vitam huie anteponit.* In the same chapter, Cicero ex- 
pressly refutes those who are for excluding foreigners from 
the benefit of those duties to which they acknowledge them- 
selves bound towards their fellow-citizens. Qui autem eivium 
ratianem dieunt habendam^ externorum negant^ hi dirimunt 
eommunem humani generis societcUem; qua sublata^ benefit 
eentioj liberalitas^ bonitaSy jmtitia^ funditus tollitur ; qum 
qui toUunt, etiam advereus JDeos immortales impii judicandi 
9unt; ab iis enim eonstitviam inter homines societatem ever- 
tunt. 

And why should we not hope still to find, among those 
who are at the head of affairs, some wise individuals who are 
convinced of this great truth, that virtue is, even for sove- 
reims and political bodies, the most certain road to prosperity 
and happiness? There is at least one benefit to be expected 
firom the open assertion and publication of sound maxims, 
which is, that even those who relish them the least are there- 
by laid under a necessity of keeping within some bounds, lest 
they should forfeit their characters altogether. To flatter 
onrselves with the vain expectation that men, and especially 
men in power, will be inclined strictly to conform to the laws 
of nature, would be a gross mistake; and to renounce all 
hope of making impression on some of them, would be to 
give up mankind for lost. 

Nations, being obliged by nature reciprocally to cultivate 
human society (Prelim. § llj, are bound to observe towards 
each other all tne duties which the safety and advantage of 
that society require. 

The offices of humanity are those succours, those duties, i 2. offices 
which men owe to each other, as men, — that is, as social be-**^ humani- 
ings formed to live in society, and standing in need of mu- JJei'^fotm. 
toal assistance for their preservation and happiness, and to dataon. 
enable them to live in a manner conformable to their nature. 
NaWy the laws of nature being no less obligatory on nations 
than an individuals (Prelim. § 5), whatever duties each man 
awes ta other men^ the same does each nation, in its way, owe 
to other nations (Prelim. § 10, &c.). Such is the foundation 
of those common duties^-of those offices of humanity — to 
which nations are reciprocally bound towards each other. 
They consist, generally, in doing every thing in our power [ 135 ] 
for the preservation and happiness of others, as far as such 
conduct is reconcilable with our duties towards ourselves. 

The nature and essence of man, who, without the assist- i 3- «e"c- 
ance of his fellow-men, is unable to supply all his wants, to'^^f"^*^^* 
preserve himself, to render himself perfect, and to live hap-^^j^^^J ®„. 

* ties of ;m- 

* De Offioiis, lib. iiL eap. 5. tio.)i>. 

213 



186 COMMON DUTIES OP A NATION 

BOOK n. pily, plainly show us that he is destined to live in society, in 
^^^^' '• the interchange of mutual aid ; and, consequently, that aU 
men are, by their very nature and essence, obliged to unite 
their common efforts for the perfection of their own being 
and that of their condition. The surest method of succeed- 
ing in this pursuit is, that each individual should exert hia 
efforts first for himself and then for others. Hence it fol- 
lows, that, whatever we owe to ourselves, we likewise owe to 
others, so far as they stand in need of assistance, and we can 
grant it to them without being wanting to ourselves. Sinee^ 
theuy one nation^ in its way^ owes to another nation every duty 
that one man owes to another man^ we may confidently lay 
down this general principle : — one state owes to another state 
whatever it owes to itself, so far as that other stands in real 
need of its assistance, and the former can grant it without 
neglecting the duties it owes to itself. Such is the eternal 
and immutable law of nature. Those who might be alarmed 
at this doctrine, as totally subversive of the maxims of sound 
policy, will be relieved from their apprehensions by the two 
following considerations : — 

1. Social bodies or sovereign states are much more capa- 
ble of supplying all their wants than individual men are ; 
and mutual assistance is not so necessary among them, nor 
so frequently required. Now, in those particulars which a 
nation can itself perform, no succour is due to it from others. 

2. The duties of a nation towards itself, and chiefly the 
care of its own safety, require much more circumspection and 
reserve than need be observed by an individual in giving as- 
sistance to others. This remark we shall soon illustrate. 

; 4. DuticB Of all the duties of a nation towards itself, the chief ob- 
of a nation jg^t is its preservation and perfection, together with that of 

for the pre- j^ ^^ rpj^ ^^^^^j] -^^^ ^f ^j^^^^^ j^ ^j^^ g^.^^ ^^^^j^ ^f ^y^ 

serration of , • .^ i i i * • i • 

others. work may serve to pomt out the several objects m relation to 
which a state may and should assist another state. Every 
nation ought, on occasion, to labour for the preservation of 
others, and for securing them from ruin and destruction, as 
far as it can do this without exposing itself too much. Thus, 
when a neighbouring nation is unjustly attacked by a power- 
ful enemy who threatens to oppress it, if you can defend it, 
without exposing yourself to great danger, unquestionably it 
is your duty to do so. Let it not be said, in objection to 
this, that a sovereign is not to expose the lives of his soldiers 
for the safety of a foreign nation with which he has not con- 
tracted a defensive alliance. It may be his own case to stand 
in need of assistance ; and, consequently, he is acting for the 
safety of his own nation in giving energy to the spirit and dispo- 
[ 186 ] sition to afford mutual aid. Accordingly, policy here coincides 
with and enforces obligation and duty. It is the interest of 
princes to stop the progress of an ambitious monarch, who 
aims at aggrandizing himself by subjugating his neighbours. 

214 



TOWARDS OTHERS. 186 



A powerful league was formed in favour of the United Pro- book n. 
vinccs, when threatened with the yoke of Louis XIV.* When ^"^''- '• 
the Turks laid siege to Vienna, the brave Sobieski, king of 
Poland, saved the house of Austria, f and possibly all Ger- 
many, and his own kingdom. 

For the same reason, if a nation is afflicted with famine, i &• it ought 
all those who have provisions to spare ought to relieve her ^ ****** * 
distress, without, however, exposing themselves to want. (89) Jfjj^^ *^:jj^ 
But, if that nation is able to pay for the provisions thus fur- famine or 
nished, it is perfectly lawful to sell them to her at a reason- any other 
able rate; for they are not bound to furnish her with what ^*^*°"*^®*- 
she is herself capable of procuring ; and, consequently, there 
is no obligation of gratuitously bestowing on her such things 
as she is able to purchase. To give assistance in such ex- 
treme necessity is so essentially conformable to humanity, 
that the duty is seldom neglected by any nation that has re- 
ceived the slightest polish of civilization. The great Henry 
the Fourth could not forbear to comply with it in favour of 
obstinate rebels who were bent on his destruction.^ 

Whatever be the calamity with which a nation is afflicted, 
the like assistance is duo to it. We have seen little states in 
Switzerland order public collections to be made in behalf of 
towns or villages of the neighbouring countries, which had 
been ruined by fire, and remit them liberal succours ; the dif- 
ference of religion proving no bar to the performance of so 
humane a deed. The calamities of Portugal have given Eng- 
land an opportunity of fulfilling the duties of humanity with 
that noble generosity which characterizes a great nation. 
On the first intelligence of the disastrous fate of Lisbon,§ the 
parliament voted a hundred thousand pounds. sterling for the 
relief of an unfortunate people ; the king also added consi- 
derable sums : ships, laden with provisions and all kinds of 
succours, were sent away with the utmost despatch ; and their 
arrival convinced the Portuguese that an opposition in belief 
and worship does not restrain the beneficence of those who 
understand the claims of humanity. On the same occasion, 
likewise, the king of Spain signally displayed his tenderness 
for a near ally, and exerted, in a conspicuous manner, his 
humanity and generosity. 

A nation must not simply confine itself to the preservation ; 6. it ought 
of other states ; it should likewise, according to its power and to contribute 
their want of its assistance, contribute to their perfection, ^^^q^^®/ ' 

"~~~ ~~ ~~ "~" other states. 

* In 1672. which would have occasioned more de- 

f He defeated the Turks, and obliged struction than the most disastrous defeat 

them to raise the siege of Vienna, in in battle, England supplied them with 

1683. Peruvian bark, which instantly checked 

(89) AntCf Prelim. ^ 14. Upon this and overcame the disease. — C. 
principle, during the late war with | At the famous siege of Paris. 
France, when the French troops were { The earthquake by which a great 
extensively afflicted with a disorder part of that city was destroyed. 

216 



186 COMMON DUnSB OP A NATION 

BOOK II. We hare already shown (Prelim. § 18) that natural society 
^^^' ^ imposes on it this general obligation. We are now come to. 



[ 187 } the proper place for treating of the obligation somewhat more 
in detail. A state is more or less perfect, as it is more or; 
less adapted to attain the end of civil society, which consists 
in procuring for its members every thing of which they stand 
in need, for the necessities, the conveniences, and enjoyments 
of life, and for their happiness in general, — ^in provicUng for 
the peaceable enjoyment of property, and the safe and easy 
administration of justice, — and, finally, in defending itself 
against all foreign violence (Book I. § 16). Every nation 
therefore, should occasionally, and according to its power, 
contribute, not only to put another nation in possession of 
these advantages, but likewise to render it capable of pro- 
curing them itself. Accordingly, a learned nation, if applied 
to for masters and teachers in the sciences, by another nation 
desirous of shaking off its native barbarism, ought not to 
refuse such a request. A nation, whose happiness it is to 
live under wise laws, should, on occasion, make it a point 
of duty to communicate them. Thus, when the wise and vir- 
tuous Romans sent ambassadors to Greece to collect good 
laws, the Greeks were far from rejecting so reasonable and 
so laudable a request. (90) 
^ 7. But not But, though a nation be obliged to promote, as far as lies 
by foroo. jjj [^ power, the perfection of others, it is not entitled forcibly 
to obtrude these good offices on them. Such an attempt 
would be a violation of their natural liberty. In order to 
compel any one to receive a kindness, we must have an autho- 
rity over him ; but nations are absolutely free and independ- 
ent (Prelim. § 4). Those ambitious Europeans who attacked 
the American nations, and subjected them to their greedy 
dominion, in order, as they pretended, to civilize them, and 
cause them to be instructed in the true religion, — ^those 
usurpers, I say, grounded themselves on a pretext equally 
unjust and ridiculous. It is strange to hear the learned and 
judicious Grotius assert that a sovereign may justly take up 
arms to chastise nations which are guilty of enormous trans- 
gressions of the law of nature, whicn treat their parents with 
inhumanity like the SogdianSy which eat human flesh as the 
ancient Q-avis^ ^c.*(91) What led him into this error, was, 

(90) See the condaot of Cfaftrlemagne bat otherwise it requires prudential 

and Alfred the Great Hume Hist checks. — G. 

The ancient policy was to withhold any * Be Jure Belli et Paois, lib. iL cap. 

eommonication or information in im- xx. 1 11. 

provements which might diminish our (91) And see the absurdity of snch 

home manufactures ; but the restrictions interference sarcastically well exempli- 

upon the exportations of artificers and fied by Cerrantes in his Don Quixote, 

machinery were removed by 5 Geo. 4, releasing the rofractoiT' apprentloe and 

c 97. If there be reciprocity on the compoUing his master to beg pardon, 

part of the other nation, the indulgence thereby occasioning the former an io- 

of this liberal policy must be desirable ; finitely more soyore chastisement — C 
216 



TOWARDS OTHERS. 187 

bis attributing to every independent man, and of course to ^^^ "• 
every sovereign, an odd kind of right to punish faults which ^^^^' '* 
involve an enormous violation of the laws of nature, though 
they do not affect either his rights or his safety. But we 
have shown (Book I. § 169) that men derive the right of pun- 
ishment solely from their right to provide for their own safety ; 
and consequently they cannot claim it except against those 
by whom they have been injured. Could it escape Grotius, 
that, notwithstanding all the precautions added by him in 
the following paragraphs, his opinion opens a door to all the 
ravages of enthusiasm and fanaticism, and furnishes ambition 
with numberless pretexts ? Mohammed and his successors have 
desolated and subdued Asia, to avenge the indignity done to 
the unity of the Godhead ; all whom they termed associators 
or idolaters fell victims to their devout fury. [ 188 ] 

. Since nations ought to perform these duties or oflSces of J 8. The 
humanity towards each other, according as one stands in need, "^^* ^"' 
and the other can reasonably comply with them,— every nation l^^ J 
being free, independent, and sole arbitress of her own actions, hamanity. 
it belongs to each to consider whether her situation warrants 
her in asking or granting any thing on this head. Thus, 
1. Every nation has a perfect right to ask of another that 
assistance and those kind offices which she conceives herself 
to stand in need of. To prevent her, would be doing her an 
injury. If she makes the application without necessity, she 
is guilty of a breach of duty ; but, in this respect, she is 
wholly independent of the judgment of others. A nation has 
a.riffht to ask for these kind offices, but not to demand them. 

For, 2. These offices being due only in necessity, and by a j 9. The 
nation which can comply with them without being wanting tori«*»tof 
itself; the nation that is applied to has, on the other hand, a^*!f*!°* 
right of judging whether the case really demands them, and ^ * ^ ^ 
whether circumstances will allow her to grant them consist- be granted, 
ently with that regard which she ought to pay to her own 
safety and interests : for instance, a* nation is in want of corn, 
and applies to another nation to sell her a quantity of it : — 
in this case it rests with the latter party to judge whether, by 
a compliance with the request, they will not expose themselves 
to the danger of a scarcity : and, if they refuse to comply, 
their determination is to be patiently acquiesced in. We have 
very lately seen a prudent performance of this duty on the 
part of Russia: she generously assisted Sweden when threaten- 
ed with a famine, but refused to other powers the liberty of 
purchasing corn in Livonia, from the circumstance of stand- 
ing herself in need of it, and, no doubt, from weighty political 
motives likewise. 

Thus, the right which a nation has to the offices of humanity i ^\ ^ ^^- 
k but an imperfect one: she cannot compel another nation *<> com "un *** 
the performance of them. The nation that unreasonably o^^t/pj,. 
refuses them offends against equity, which consists in acting form those 

28 T 217 



188 COMMON DUTIES OF A NATION 



BOOK II. conformably to the imperfect right of another : but thereby 
.no injury is done ; injury or injustice being a trespass against 



CHAP. I. 



offices of the perfect right of another. 



which tho j^ jg impossible that nations should mutually discharge all 



wrong. these several duties if they do not love each other. This is 
1 11. Mu- the pure source from which the offices of humanity should 
tuai lovo of proceed ; they will retain the character and perfection of it. 
nations. Then nations will be seen sincerely and cheerfully to help each 
other, earnestly to promote their common welfare, und culti- 
vate peace, without jealousy or distrust. 
§ 12. Each A real friendship will be seen to reign among them; and 
nation this happy state consists in a mutual affection. Every nation 
ought to cui-jg obUnred to Cultivate the friendship of other nations, and 
friendship carciully to avoiQ whatever might kmdle their enmity against 
of otberB. her. Wise and prudent nations often pursue this line of con- 
duct from views of direct and present interest : a more noble, 
[ 139 ] more general, and less direct interest, is too rarely the motive 
of politicians. If it ])e incontestable that men must love each 
other in order to answer the views of nature and discharge 
the duties which she prescribes them, as well as for their own 
private advantage,^-can it be doubted that nations are under 
the like reciprocal obligation ? Is it in the power of men, on 
dividing themselves into different political bodies, to break 
the ties of that universal society which nature has established 
amongst them ? 
^ v\. To If a man ought to qualify himself for becoming useful to 
perfect itself other mcu, — and a citizen, for rendering useful sernces to his 
witha>-iew country and fellow citizens, — a nation likewise, in perfecting 
vantTgo of li^rself, ought to havo in view the acquisition of a greater 
othert), and degree of ability to promote the perfection and happiness of 
set tiicni other nations ; sne should be careful to set them good examples, 
good oxani- j^j^^j ^yoid Setting them a pattern of any thing evil. Imitation 
^' '^^'^' is natural to mankind : the virtues of a celebrated nation are 

sometimes imitated, and much more frequently its vices and 
defects, 
g u. T.. Glory being a possession of great importance to a nation, 
take care of qs wc havc showu in a particular chapter expressly devoted 
their giorv. ^^ ^^iq subjcct,* — the duty of a nation extends even to the 
care of the glory of other nations. In the first place, she 
should, on occasion, contribute to enable them to merit true 
glory : secondly, she should do them in this respect all the 
justice due to them, and use all proper endeavours that such 
justice be universally done them : finally, instead of irritating, 
she should kindly extenuate the bad effect which some slight 
blemishes may produce. 
^ i:>. Dif. From the manner in which we have established the obliga- 
ferencc of ^Jq^ ^f performing the offices of humanity, it plainly appears 
re igi ,n ^^ |^^ solcly fouudcd ou the nature of man. Wherefore, no 

* Book I. chap. zt. 
218 



TOWARDS OTHERS. 139 

nation can refuse tliem to another, under pretence of its pro- book ii. 
fessing a different religion : to be entitled to them, it is suffi- 



cient that the claimant is our fellow-creature. A conformity ought not to 
of belief and worship may become a new tie of friendship P"«i«de the 
between nations : but no difference in these respects can war- ^u^lity 
Tant us in laying aside the character of men, or the sentiments 
annexed to it. As we have already related (§ 5) some instances 
well worthy of imitation, let us here do justice to the pontiff 
who at present fills the see of Rome, and has recently given 
a very remarkable example, and which cannot be too highly 
commended. Information being given to that prince, that 
several Dutch ships remained at Civita Vecchia, not daring to 
put to sea for fear of the Algerine corsairs, he immediately 
issued orders that the frigates of the ecclesiastical state should 
convoy those ships out of danger ; and his nuncio at Brussels 
received instructions to signify to the ministers of the states- 
general, that his holiness made it a rule to protect commerce 
and perform the duties of humanity, without regarding any 
difference of religion. Such exalted sentiments cannot fail 
of raising a veneration for Benedict XIV. even amongst Pro- 
te8tants.(92) [ 140 ] 

How happy would mankind be, were these amiable precepts i ic. Rule 
of nature everywhere observed ! Nations would communicate »ndmeMuro 
to each other their products and their knowledge ; a profound of ^^mani^! 
peace would prevail all over the earth, and enrich it with its 
invaluable fruits ; industry, the sciences, and the arts would 
be employed in promoting our happiness, no less than in re- 
lieving our wants ; violent methods of deciding contests would 
be no more heard of; all differences would be terminated by 
moderation, justice, and equity ; the world would have the 
appearance of a large republic ; men would live everywhere 
lite brothers, and each individual be a citizen of the universe. 
That this idea should be but a delightful dream ! yet it flows 
from the nature and essence of man.* But disorderly pas- 
sions, and private and mistaken interest, will for ever prevent 
its being realized. Let us, then, consider what limitations 

(92) He was mnch celebrated and man, — it necessarily follows, tbat» ac- 

spokcn of in Lord Chorlcmont'a Tra- cording to the intentions of nature, all 

vels in A. D. 1742. — C. mankind mnst haye one oommon in- 

* Here, again, let ns call in tbo terest — Ergo nnnm debet esse omni- 
authority of Cicero to our support bus propoaitum; ut eadem sit utilitas 
"All mankind (says that excellent uniusci^usque et unirorsomm: quam 
philosopher) should lay it down as si ad se quisque rapial^ dissolrotnr 
their constant rule of action, that in- omnis humana consoeiatio. Atque si 
dlridna} and general advantage should etiam hoc natnra prsBsorlbity ut homo 
be the same : for, if each man strives to homini, quicunque sit^ ob earn ipsam 
graip every advantage for himself, all causam, quod is homo sit, consultum 
the ties of human society wiU be velit, necesse est^ secundum eandem 
broken. And, if nature ordains that naturam, omnium utilitatem esse corn- 
man should feel interested in the weU munem. De Offie, lib. iiL cap. iv. Note 
fore of bis fcllow-mau, whoever he be, Eb. 1797. 
and for the single reason that he is a 

219 



140 COMMON DUTIES OF A NATION 

BOOK II. the present state of men, and the ordinary maxims and con.- 
^^^^' ^' duct of nations, may render necessary in the practice of 
these precepts of nature, which are in themselves so noble 
and excellent. 

The law of nature cannot condemn the good to become the 
dupes and prey of the wicked, and the victims of their injus- 
tice and ingratitude. Melancholy experience shows that most 
nations aim only to strengthen and enrich themselves at the 
expense of others, — to domineer over them, and even, if an 
opportunity offers, to oppress and bring them under the yoke. 
Prudence does not allow us to strengthen an enemy, (93) or 
one in whom we discover a desire of plundering and oppress- 
ing us : and the care of our own safety forbids it. We have 
seen (§ 3, &c.) that a nation does not owe her assistance and 
the offices of humanity to other nations, except so far as the 
grant of them is reconcilable with her duties to herself. 
Hence, it evidently follows, that, though the universal love of 
mankind obliges us to grant at all times, and to all, even to 
our enemies, those offices which can only tend to render them 
more moderate and virtuous, because no inconvenience is to 
be apprehended from granting them, — ^we are not obliged to 
give them such succours as probably maj become destructive 
to ourselves. Thus, 1. The exceecung importance of trade, 
not only to the wants and conveniences of life, but likewise 
to the strength of a state, and furnishing it with the means 
of defending itself against its enemies, — and the insatiable 
[ 141 ] avidity of those nations which seek wholly and exclusively to 
engross it, — ^thus, I say, these circumstances authorize a na- 
tion possessed of a branch of trade, or the secret of some 
important manufacture or fabric, to reserve to herself those 
sources of wealth, and, instead of communicating them to 
foreign nations, to take measures against it. But, where the 
necessaries or conveniences of life are in question, the nation 
ought to sell them to others at a reasonable price, and not 
convert her monopoly into a system of odious extortion. To 
commerce England chiefly owes her greatness, her power, and 
her safety : who, then, will presume to blame her for endea- 
vouring, Dy every fair and just method, to retain the several 
branches of it in her own hand 7 

2. As to things directly and more particularly useful for 
war, a nation is under no obligation to sell them to others of 
whom it has the smallest suspicion ; and prudence even de- 
clares against it. Thus, by the Roman laws, people were 
very justly prohibited to instruct the barbarous nations in 
building galleys. Thus, in England, laws have been enacted 

(93) The same pnidentiAl consider- granted withoat eqoJralent to another 

Adon extends aleo in time of jxact ; state, she may deokre war against the 

for, who oan anticipate how soon alter nation who conferred them ? — C. 
adTantagee have been conferred or 
220 



TOWARDS OTHERS. 141 

to prevent the best method of Bhip-building from being carried book n. 
out of the kingdom. ^^^- '• 

This caution is to be carried farther, with respect to na- 
tions more justly suspected. Thus, when the Turks were 
successfully pursuing their victorious career, and rapidly ad- 
vancing to the zenith of power, all Christian nations ought, 
independent of every bigoted consideration, to have consi- 
dered them as enemies ; even the most distant of those na- 
tions, though not engaged in any contest with them, would 
have been justifiable in breaking off all commerce with a peo- 
ple who made it their profession to subdue by force of arms 
all who would not acknowledge the authority of their prophet. 

Let us further observe, with regard to the prince in par- g ir, ParU- 
ticular, that he ought not, in affairs of this nature, to obey ouiar limita- 
without reserve all the suggestions of a noble and generous *^®° ^^ 
Leart impelling him to sacrifice his own interests to the ad-[^f* .^^ 
yantage of others, or to motives of generosity ; because it is 
not his private interest that is in question, but that of the 
state — that of the nation who has committed herself to his 
care. Cicero says that a great and elevated soul despises 
pleasures, wealth, life itself, and makes no account of them, 
when the common utility lies at stake.* He is right, and 
such sentiments are to be admired in a private person ; but 
generosity is not to be exerted at the expense of others. 
The head or conductor of a nation ought not to practise that 
virtue in public affairs without ^reat circumspection, nor to a 
greater extent than will redound to the glory and real advan- 
tage of the state. As to the common good of human society, 
he ought to pay the same attention to it as the nation he re- 
presents woidd be obliged to pay were the government of her 
affairs in her own hand. 

But, though the duties of a nation towards herself set j is. Ko 
bounds to the obligation of performing the oflSces of human- nation 
ity, they cannot in the least affect the prohibition of doing ^^s^''^^^- 
any harm to others, of causing them any prejudice, — ^in a ^°'*^ ^ *"' 

word, of injuring them f If every [ 142 ] 

man is, by his very nature, obliged to assist in promoting the 
perfection of others, much more cogent are the reasons which 
forbid him to increase their imperfection, and that of their 
condition. The same duties are incumbent on nations (Pre- 
lim. §§ 5, 6^. No nation, therefore, ought to commit any 
actions tending to impair the perfection of other nations, and 
that of their condition, or to impede their progress, — ^in other 

* De Offic. lib. iii. cap. v. prejudice (to prejudice), hlener (to 

f Lizer (professedly borrowed from wound, or hurt), are not of precisely the 

the Latin Lxdc) is Uie term used by same import^" and that, by the word 

the author, who, in order the better to liter (which is here rendered injure) he 

explain his meaning, proceeds to in- means, " in general, causing imperfection 

form us, that **nuire (to hurt), offeneer in the injured party, or in his condition 

(to offend), /aire tort (to wrong), porter — ^rendering his person or his condition 

dommage (to cause detriment), porter less perfect" 

t2 221 



142 



COMMON DUTIES OF A NATION 



BOOK 
CHAP. 



: n. words, to injure them. (94) And, since the perfection of a 
lii— nation consists in her aptitude to attain the end of civil so- 
ciety — ^and the perfection of her condition, in not wanting 
any of the things necessary to that end (Book I. § 14) — no 
one nation ought to hinder another from attaining the end of 
civil society, or to render her incapable of attaining it. This 
general principle forbids nations to practise any evil manoeu- 
vres tending to create disturbance in another state^ to foment 
diacordj to corrupt its citizens, to alienate its allies, to raise 
enemies against it, to tarnish its glory, and to deprive it of 
its natural advantages. (95^ 

However, it will be easily conceived that negligence in ful- 
filling the common duties of humanity, and even the refusal 
of these duties or oflBces, is not an injury. To neglect or re- 
fuse contributing to the perfection of a nation, is not impair- 
ing that perfection. . 

It must be further observed, that, when we are making use 
of our right, when we are doing what we owe to ourselves or 
to others, if, from this action of ours, any prejudice results 
to the perfection of another, — any detriment to his exterior 



(94) This position, however, requires 
qaalifieation ; for, whether in time of 
peace or of war, a natioA has a right 
to diminish the commerce or resources 
of another hy fiur rivalry and other 
means not in themselves unjust, precisely 
as one tradesman may by fair compe- 
tition undersell his neighbour, and 
thereby alienate his customers. — C. 

(95) An instance of this rule is, the 
illegality of any commercial intercourse 
with a revolted colony before ita sepa- 
rate independence has been acknow- 
ledged. A contract made between a 
revolted colony in that character with 
the subject of another state that has 
not as yet recognised such revolted co- 
lony as an independent state, is illegal 
and void, and will not bo given effect 
to by the Court of Chancery, or any 
other court in this country. City of 
Berne v. Bank of England, 9 Yes. 347 ; 
Jonee v. Garcia del Jiio, 1 Turner A 
Rnss. 297; Tkompaon v. Powle$, 2 Sim. 
Rep. 202, 3; De WutM v. Hendricka, 

2 Bing. 814; Yriearri v. Clement, 
11 Moore, 308; 2 Car. A P. 223; 

3 Bing. 432; for, such direct recogni- 
tion of such a revolted colony must 
necessarily be offensive to the princi- 
pal state to which it belonged; and, in 
the American war, Great Britain de- 
clared war against France and other 
countries on the ground of their im- 
proper interference between her and 
her colonies, Tkompeon v. PovcUe, 2 Sim. 

222 



Rep. 203, 212, 3, and in Biri v. Tfump- 
eon, cited id. and id. 222, Lord Eldon 
refused to take notice of the RepnbUe 
of Colombia: and it seems that^ if a 
bill in equity falsely' state that the co- 
lony had been recognised as an inde- 
pendent stat«, the court may take ju- 
dicial notice of the contrary, and decree 
or proceed accordingly; and the mere 
fact of this country having for com- 
mercial purposes sent a coneul to a re- 
volted colony, is not equivalent to a 
state recognition of its independence; 
Taylor v. Barclay, 2 Sim. 213, and 
Yriearri v. Clement, 11 Moore, 308; 2 
Carr. A P. 223 ; 3 Bing. 432, cited id. 
219; {The United Statee v. Palmer, % 
Wheat Rep. 610.} 

To supply such a revolted colony 
(or even any independent state) with 
money, without leave of the govern- 
ment to which a subject belongs, ia il- 
legal, because that would be assisting 
such colony against the parent country 
to which it belongs; and also becanae 
it would create objects and interests on 
the part of the subject that might in 
case of war be injurious to his own go- 
vernment Observations in Tkompeon. 
V. PowUe, 2 Sim. Rep. 203, and Jlen- 
ninge v. Rotheekild, 12 Moore, 559; 4 
Bing. 315, 335; 9 Bar. A Ores. 470; 
Yriearri v. CUment, 11 Moore, 308 ; 2 
Car. A P. 223; 3 Bing. 432. {See 
The Santieeima Trinidada, 7 Wheat- 
Rep. 283.] 



TOWARDS OTHERS. 142 



condition, — ^we are not guilty of an injury : we are doing book n. 
what is lawful, or even wnat we ought to do. The damage *^"^^' '• 



which accrues to the other is no part of our intention : it is 
merely an accident, the imputability of which must be deter- 
mined by the particular circumstances. For instance, in case 
of a lawful defence, the harm we do, to the aggressor is not 
the object we aim at : — ^we act only with a view to our own 
safety ; we make use of our right ; and the aggressor alone is 
chargeable with the mischief which he brings on himself. 

Nothing is more opposite to the duties of humanity, nor ? 19. Of- 
more contrary to that society which should be cultivated by f«>»cc8. 
nations, than offences, or actions which give a just displeasure 
to others : every nation therefore should carefully avoid giving 
any other nation real offence: I say real; for, should others 
take offence at our behaviour when we are only using our 
rights or fulfilling our duties, the fault lies with them, not with 
us. Offences excite such asperity and rancour between nations 
that we should avoid giving any room even for ill-grounded [ 143 ] 
piques, when it can be done without any inconveniency, or 
failure in our duty. It is said that certain medals and dull 
jests irritated Louis XIV. against the United Provinces to 
such a degree as to induce him, in 1672, to undertake the de- 
struction of that republic. (96) 

The maxims laid down in this chapter, — those sacred pre- 1 20. Ba<i 
cepts of nature, — were for a long time unknown to nations, custom or 
The ancients had no notion of any duty they owed to nations* eantiei.u-. 
with whom they were not united by treaties of friendship.* 
The Jews especially placed a great part of their zeal in hating 
all nations ; and, as a natural consequence, they were detested 
and despised by them in turn. At length the voice of nature 
came to be heard among civilized nations ; they perceived that 
all men are brethren, f When will the happy time come that 
they shall behave as such ? 



(96) On this ground it was held that 20, and see jpoat^ page 173, end of note ; 

the publication in England of a libel and see 1 Chit. Commercial L. 74. — 0. 

upon Bonaparte, then first consul of * To the example of the Romans 

the French republic, was an indictable may be added that of the English in 

offence, as calculated to stir up aoi- former days, — since, on the occasion 

mosity between him and the citizens of a navigator being accused of having 

of the republic, and to croat« discord committed some depredations on the 

between our king and people and said natives of India, '' this act of injustice" 

Bonaparte and said republic. Infor- (according to Qrotius) <<was not with- 

mation against Peltier filed in Grown out advocates who maintained, that, 

Oflic«, E. B., in Michaelmas Term, by the ancient laws of England, crimes 

43 Geo. 3 — 1 Camp. 352. { Adam's committed against foreign nations with 

Rep. of Pe/<ter'« Trial, Lond. 1803.} Bo whom there existed no public treaty 

Lord Hawkesbury laid it down to be of alliance, were not punishable in that 

elear " that a foreign power has a right kingdom." — Htetory of ikt Dieturbaneee 

lo apply to foreign courts of judicature in the Low Countriee, book xvL 

and obtain redress for defamation or f See J 1, a fine passage of Cicero, 
calumny/' 6 RusseU's Modem Europe, 

223 



148 MUTUAL COMMBRCB OF RATIONS. 



BOOK n. 
CHAP. II. 



CHAP. 11. 

OF THB MUTUAL COMMERCE BETWEEN NATIONS. 

Li\r^*"* ALL men ought to find on earth the things they stand in 
tion^of m^- ^^^^^ ^f' ^^ ^^^ primitive state of communion, they took them 
tions to car- wherever they happened to meet with them, if another had 
Tj on mu- not before appropriated them to his own use. The introduc- 
tiui com- ^j^jj ^£ dominion and property could not deprive men of so 
essential a right; and, consequently, it cannot take place 
without leaving them, in general, some mean of procuring 
what is useful or necessary to them. This mean is commerce ; 
by it every man may still supply his wants. Things being 
now become property, there is no obtaining them without the 
owner's consent, nor are they usually to be had for nothing ; 
but they may be bought, or exchanged for other things of 
equal value. Men are, therefore, under an obligation to carry 
on that commerce with each other, if they wish not to deviate 
from the views of nature ; and this obligation extends al&o to 
whole nations or states (Prelim. § 5). It is seldom that nature 
is seen in one place to produce every thing necessary for the 
use of man ; one country abounds in corn, another in pastures 
and cattle, a third in timber and metals, &c. If all those 
countries trade together, as is agreeable to human nature, no 
[ 144 ] one of them will be without such things as are useful and 
necessary ; and the views of nature, our common mother, will 
be fulfilled. Further, one country is fitter for some kind of 
products than another, as, for instance, fitter for the vine than 
for tillage. If trade and barter take place, every nation, on 
the certainty of procuring what it wants, will employ its land 
and its industry in the most advantageous manner, and man- 
kind in general prove gainers by it. Such are the foundations 
of the general obligation incumbent on nations reciprocally to 
cultivate commerce. (97) 

(97) The restrictions on trade, which freedom bein|^ reiy foyonnible to com- 

have been enforced absolutely or con- merce, it is implied in the duties of na- 

ditionally, bj almost all the powerful tions that they should support it aa far 

nations of the world, have been the as possible, instead of cramping it by 

cause of a thousand wars, and the unnecessary burdens or restrictions; 

ground-work of innumerable treaties; and this position is supported by the 

and, therefore, it is important that we reasons thua urged by Vattel {ntprat 

should give them full consideration. } 21). 

With respect to the freedom of trade, It was this feeling that influenced 
it has been laid down by the wisest of that celebrated statesman, Mr. Pitt, in 
politicians and best of men, that every concluding the commercial treaty witii 
nation ought not only to countenance France, in 1786. Great Britain and 
trade as far as it reasonably can, but France had, for centuries before, eon- 
even to protect and favour it; and that> tniry to every sound principle of polioy, 
221 



MUTUAL COMMBRCB OF NATIONS. 



144 



Every nation ought, therefore, not only to countenance bookii. 
trade, as far as it reasonably can, but even to protect and fa- chap, n. 
vour it. The care of the public roads, the safety of travel- § 22. They 
lers, the establishment of ports, of places of sale, of well- should fisk- 
regulated fairs, all contribute to this end. And, where these ^^^ *'^*^* 
are attended with expense, the nation, as we have already ob- 
served (Book I. § 103), may, by tolls and other duties equita- 
bly proportioned, indemnify itself for its disbursements. 

Freedom being very favourable to commerce, it is implied, § 23. Fne-' 
in the duties of nations, that they should support it as far as dom of 
possible, instead of cramping it by unnecessary burdens or '"**^ 
restrictions. Wherefore, those private privileges and tolls, 
which obtain in many places, and press so heavily on corn- 



acted 88 rival eTumieSf* and their com- 
mercial policy was dictated by the 
same spirit which prompted their un- 
hippy wan; insomuch, that, though 
they possessed the materials of a most 
extemdTe commerce — the one abound- 
ing in all that art and industry can 
sapply, and the other in productions 
of a more favoured soil and climate— 
the exchange of their peculiar produce 
was discouraged by a complicated sys- 
tem of restraint and heavy dutie8.t 
The object of the commercial treaty 
alluded to was, to abolish those per- 
nidoos restraints, and, by connecting 
the two countries in the bonds of a 
reciprocal trade, to pledge them, by 
their mutual interest, to an oblivion 
of their ancient animosities. The view 
in whidi that treaty originated was ex- 
plained by Mr. Pitt, when it was sub- 
mitted to Parliament; and the senti- 
ments which he expressed gave to this 
mewore a remarkable character of 
moderation and wisdom. In reply to an 
argument inculcating constant jealousy 
^ FraMcty^ he Inquired, « whether, in 
using the word jeaUnuyy it was meant 
to recommend to this country such a 
•pedes of jealousy as should be either 
mad or blind, such a spedes of jealousy 
as should induce her either madly to 
throw away what was to make her 
happy, or blindly grasp at that which 
must end in her ruin 1 Was the ne- 
oeasi^ of a perpetual animosity with 
France so evident and so pressing that 
fys it we were to sacrifice every com- 



merdal advantage we might expect 
from a friendly intercourse with that 
country ? or, was a pacific connection 
between the two kingdoms so highly 
offensive that even an extension of com- 
merce could not counterpdseitl" To- 
wards the dose of the same speech, he 
observes, «<The quarrels between 
France and Britain had too long con- 
tinned to harass not only those two 
great nations themselves, but had fire- 
quently embroiled the peace of Europe ; 
nay, had disturbed the tranquillity of 
the most remote parts of the world. 
They had, by ^eir past conduct, acted 
as if they were intended for the de- 
struction of each other ; but he hoped 
the time was now come when they 
should justify the order of the universe, 
and show that they were better calcu- 
lated for the more amiable purposes 
oi friendly interamrae and mutual bent' 
wdence,** "Considering the treaty*" 
he continued, « in a political view, he 
should not hesitate to contend against 
the too frequently advanced doctrine, 
that France was and must be the in- 
alterable enemy of Britain ; his mii^d 
revolted from this podtion as monstrous 
and imposnble. To suppose that any 
nation was unaltersibly the enemy of 
another, was weak and childish: it 
had neither its foundation in the expe- 
rience of nations nor in the history of 
man. It vhu a libel on ike conttitution 
of political wdeties, and suppoud diabo-^ 
lieal malice in the original frame of 



* 2 Smith's Wealth of Nations, pp. 226-7, 252-^ ; Tucker's Pamphlet, Cui 
Bono. ^ 

f See Smith's Wealth of Nations, voL 4, 169, ptr Buchanan; and see An* 
deraon's Hist. Com. vol. 4, pp. 634 to 639. 

29 225 



144 MUTUAL COMMSBCE OF NATIONS. 

BOOK u. merce, are deservedly to be reprobated, unless founded on 

^^^^- "• very important reasons arising from the public good. 

$24. Right Every nation, in virtue of ner natural liberty, has a riglit 

of trading, to trade with those who are willing to correspond with sudi 

belonging to jjj^^^jjI^Qjj^g. ^^^^ ^^ molest her in the exercise of her right 



nations. 



is doing her an injury. (98) The Portuguese, at the time of 
their great power in the East Indies, were for excluding aS 
other European nations from any commerce with the In- 
dians ; but such a pretension, no less iniquitous than chime- 
rical, was treated with contempt; and the other nations 
agreed to consider any acts of violence in support of it, as 
just grounds for making war against the Portuguese. This 
common right of all nations is, at present, generally acknow- 
ledged under the appellation of freedom of trade. 
§26. Each But, although it be in general the duty of a nation to 
nation is carry on commerce with others, and, though each nation has 
'f^th'^^^* a right to trade with those countries that are willing to en- 
pricty oT" courage her— on the other hand, a nation ought to decline a 
commerce Commerce which is disadvantageous or dangerous (Book L 
on her own § 98) ; and since, in case of colliaiony her duties to herself are 
P*^^^^^ paramount to her duties to others, she has a full and clear 
right to regulate her conduct, in this respect, by the consi- 
deration of what her advantage or safety requires. We have 
already seen (Book I. § 92), that each nation is, on her own 
part, the sole judge whether or not it be convenient for her to 
cultivate such or such branch of commerce. She may, there- 
fore, either embrace or reject any commercial proposals from 
foreign nations, without affording them any just grounds to 
accuse her of injustice, or to demand a reason for such re- 
fusal, much less to make use of compulsion. She is free in 
[ 145 ] the administration of her affairs, without being accountable 
to any other. The obligation of trading with o3ier nations is 
in itself an imperfect obligation (Prelim. § 17), and gives 
them only an imperfect right ; so that, in cases where the 
commerce would be detrimental, that obligation is entirely 
void. When the Spaniards attacked the Americans, under a 
pretence that those people refused to traffic with them, they 
only endeavoured to throw a colourable veil over their own 
insatiable avarice. 
5 M. Na* These few remarks, together with what we have already 



ce a sity of 
conUD 
treatk 
(100) 



f^"'?^'^'*^ (98) It is a general rule of the law position. It there eeema that an ex- 

^^^JJ^'"' of nations, that, in time of ptactf no elusive trade may be acquired by a 

nation is entitled to limit or impose treaty with the nations of India who 

regulations upon the commerce which have not before entered into a reatiio- 

any other independent state may think tive treaty. See also 1 Chit Com. L. 

fit to cany on, either externally, with 76w — C. 

thenativesof other independent states, (99) See further, 1 Chit Com. L. 

or internally, amongst its own subjects. 80, n. 2 ; Grotius, 168 ; Pn£ b. 4,c 6^ 

Pufiend. b. 4, c. 6, s. 10, p. 168 ; Mar- s. 10, p. 168. 

ten's L. N. 152-3; where see the dif* (100) See, more ftUly, 1 Chittfa 

ferent authorities in support of this Cmn. L. 86. 
286 



MUTUAL COMMKRCB OP NATIONS. 145 

said on the subject (Book I. Chap. VIII.), may suffice to book u. 
establish the principles of the natural law of nations respectr- ohap. n. 
ins the mutual commerce of states. It is not difficult to 
pomt out, in general, what are the duties of nations in this 
respect, and what the law of nature prescribes to them for 
the good of the great society of mankind. But, as each nsn 
tion is only so far obliged to carry on commerce with others 
as she can do it without being wanting to herself, and as the 
whole ultimately depends on the judgment that each state 
may form of what it can and ought to do in particular cases^ 
nations cannot count on any thing more than generalities, 
such as, the inherent liberty of each to carry on trade, and, 
moreover, on imperfect rights, which depend on the judgment 
of others, and, consequently, are ever uncertain. Where- 
fore, if they wish to secure to themselves any definite and 
constant advantages, they must procure them by treaties. 

Since a nation has a full right to regulate herself in com- § 27. Gene- 
mercial affairs by what is useful or advantageous to her, she "!"»*•. 
may make such commercial treaties as she thinks proper ; J^J^f^^ 
ana no other nation has a right to take offence, provided ^e8. 
those treaties do not affect the perfect rights of others. If, 
by the engagements contracted, a nation, unnecessarily, or 
without powerful reasons, renders herself incapable of join- 
ing in the general trade which nature recommends between 
nations, she trespasses against her duty. But, the nation 
being the sole judge in this case (Prelim. § 16), other nations 
are bound to respect her natural liberty — to acquiesce in her 
determination, and even to suppose that she is actuated by 
substantial reasons. Every commercial treaty, therefore, 
which does not impair the perfect right of others, is allowa- 
ble between nations ; nor can the execution of it be lawfully 
opposed. But those commercial treaties alone are in them- 
selves just and commendable, which pay to the general inte- 
rest of mankind as great a degree of respect as is possible 
and reasonable in the particular case. 

As e:qpress promises and engagements should be inviolable, § 28. Duty 
every wise and virtuous nation will be attentive to examine of nations 
and weigh a commercial treaty before ^she concludes it, *^d™J||^"^j^ 
to take care that she be not thereby engaged to any thing ^^ 
contrary to the duties which she owes to herself and others. 

Nations may, in their treaties, insert such clauses and con- § 29. Per- 
ditions as they think proper ; they are at liberty to make P«*^«i or 
them perpetual, or temporary, or dependent on certain events. ^™|^™7r 
It is usually most pmaent not to engage for ever, as circum- r -^q \ 
stances may afterwards intervene, by which the treaty might treaties re^ 
become very oppressive to one of the contracting parties. A vocable at 
nation may confine a treaty to the grant of only a precarious pleasure. 
right — reserving to herself the liberty of revoking it at plea- 
sure. We have already observed (Book I. § 94) that a simple 
permission does not, any more than long custom (Ibid. § 95), 

227 



146 MUTUAL COMMERCE OF NATIOKS. 

BOOK n. give any perfect right to a trade. These things — ^namely, 

oHAP. n. permission and customs — are therefore not to be confounded 

with treaties, — ^not even with those which give only a preca^ 

rious right. 

§ 30. No- When once a nation has entered into engagements by 

thing con- treaty, she is no longer at liberty to do, in favour of others^ 

tenor of a ^^^^^^^^J *<> ^^^ tenor of the treaty, what she might otherwise 

treaty can ^^^0 granted to them agreeably to the duties of humanity or 

be granted the general obligation of mutual commerce ; for she is to do 

to a third fop others no more than what is in her power ; and, having 

P"*y* deprived herself of the liberty of disposing of a thing, that 

thing is no longer in her power. Therefore, when a nation 

has engaged to another that she will sell certain merchandise 

or produce to the latter only — as, for instance, corn — she 

can no longer sell it to any other. The case is the same in 

a contract to purchase certain goods of that nation alone. 

§81. How But it will be asked, how and on what occasions a nation 

far lawful to may enter into engagements which deprive her of the liberty 

^®^P ^y to fulfil her duties to others. As the duties we owe to our- 

libe^ of selves are paramount to those we owe to others, if a nation 

trading with finds her Safety and substantial advantage in a treaty of this 

other na- nature, she is unquestionably justifiable in contracting it, espe- 

^onfl. cially as she does not thereby interrupt the general commerce 

of nations, but simply causes one particular branch of her 

own commerce to pass through other hands, or insures to a 

f articular people certain things of which they stand in need, 
f a state which stands in need of salt can secure a supply of 
it from another, by engaging to sell her corn and cattle only 
to that other nation, who will doubt but that she has a right 
to conclude so salutary a treaty ? In this case, her corn or 
cattle are goods which she disposes of for supplying her own 
wants. But, from what we have observed (§ 28), engage- 
ments of this kind are not to be entered into without very 
good reasons. However, be the reasons good or bad, the 
treaty is still valid, and other nations have no right to op- 
pose it (§ 27). ^ 
§ 32. A na- Every one is at liberty to ren^mnce his right ; a nation, 
tion may therefore, may lay a r^estriction on her commerce in favour 
co^er^ ^^ another nation, and engage not to traffic in a certain kind 
^ fi^ouTof of goods, or to forbear trading with such and such a country, 
another. &c. And, in departing from such engagements, she acts 
against the perfect right of the nation with which she has con* 
tracted, and the latter has a right to restrain her. The 
natural liberty of trade is not hurt by treaties of this nature ; 
for that liberty consists only in every nation being unmolested 
in her right to carry on commerce with those that consent to 
[ 147 ] traffic with her; each one remaining free to embrace or de- 
cline a particular branch of commerce, as she shall judge moat 
advantageous to the state. 
Nations not only carry on trade for the sake of procuring 



MUTUAL COMMERCB OF NATIONS. 147 

necessary or useful articles, but also with a view to make it book ii. 
a source of opulence. Now, wherever a profit is to be made, ^^^^' "• 
it is equally lawful for every one to participate in it : but the § 33. A na- 
most diligent may lawfully anticipate the others by taking tion may 
possession of an advantage which lies open to the first occu- appropriate 
pier ; — he may even secure the whole entirely to himself, if ^^^jj^ 
he has any lawful means of appropriating it. When, there- branch of 
fore, a particular nation is in sole possession of certain articles, trade. 
another nation may lawfully procure to herself by treaty the 
advantage of being the only buyer, and then sell them again 
all over the world. And, as it is indifferent to nations from 
what hand they receive the commodities they want, provided 
they obtain them at a reasonable price, the monopoly of this 
nation does not clash with the general duties of humanity, 
provided that she do not take advantage of it to set an un- 
reasonable and exorbitant price on her goods. Should she, 
by an abuse of her monopoly, exact an immoderate profit, this 
-would be an offence against the law of nature, as, by such an 
exaction, she either deprives other nations of a necessary or 
agreeable article which nature designed for all men, or obliges 
them to purchase it at too dear a rate: nevertheless, she 
does not do them any positive wrong, because, strictly speak- 
ing, and according to external right, the owner of a commo- 
dity may either keep it or set what price he pleases on it. 
Thus, the Dutch, by a treaty with the king of Ceylon, have 
wholly engrossed the cinnamon trade : yet, whilst they keep 
their profits within just limits, other nations have no right to 
complain. 

But, were the necessaries of life in question — ^were the 
monopolist inclined to raise them to an excessive price — 
other nations would be authorized by the care of their own 
safety, and for the advantage of human society, to form a 
general combination in order to reduce a greedy oppressor to 
reasonable terms. The right to necessaries is very diSiBrent 
from that to things adapted only to convenience and pleasure, 
which we may dispense with if they be too dear. It would 
be absurd that the subsistence and being of other nations 
should depend on the caprice or avidity of one. 

Among the modern institutions for the advantage of com- S 34. Con- 
merce, one of the most useful is that of consuls, or persons *"^' ^^^^^ 

(101) See further as to consuls, pos^ and see dedsions Mbreton y. SHStman, 

B. 4, ch. 8, 8. 75, p. 461. This and 2 Yes. 6c B. 323 ; 4 Bar. & Cres. 886; 

the following sections are much too 8 Moore's Rep. 632; 7 T. R. 251; 

concise upon the important subject of 8 East, 364 ; 2 Chalm. Opin. 294. A 

consuls. See more fully 1 Chitty's foreign consul cannot sue a merchant 

Commercial Law, 48 to 73 ; statute here for any supposed services in that 

6 Goo. 4, c 87 ; Warden on Consular charactei^— i)« Lima v. Haldimand, 

Establishments, Paris, a. d. 1813; 1 Ryan dc Moody, 45: nor is he pri- 

Madame de Stock, a Berlin, 1790 ; vileged from arrest, Viveash y. Belcher, 

Anderson's Hist. Commerce, index, 3 Mau. dc Selw. 284. {He is liable 

^titles, ** Consenrator," and ** Consul ;" as garnishee in the case of a foreign 

U 229 



147 MUTUAL COHMEROE OF NATIONS. 

BOOK II. residing in the large trading cities, and especially the sea- 

OHAP. II. ports, of foreign countries, with a commission to watch over 

the rights and privileges of their nation, and to decide dis- 

{>ates between her merchants there. When a nation trades 
argely with a country, it is requisite to have there a person 
charged with such a commission: and, as the state whieh 
allows of this commerce must naturally favour it, — for the 
same reason, also, it must admit the consul. But, there 
being no absolute and perfect obligation to this, the nation 
[ 148 ] that wishes to have a consul, must procure this right by the 
commercial treaty itself. 

The consul being charged with the affairs of his sovereign, 
and receiving his orders, continues his subject, and account- 
able to him for his actions. 

The consul is no public minister (as will appear by what 
we shall say of the character of ministers, in our fourth book), 
and cannot pretend to the privileges annexed to such character. 
Yet, bearing his sovereign's commission, and being in this 
quality received by the prince in whose dominions he resides, 
he is, in a certain degree, entitled to the protection of the 
law of nations. This sovereign, by the very act of receiving 
him, tacitly engages to allow him all the liberty and safety 
necessary to the proper discharge of his functions, without • 
which the admission of the consul would be nugatory and 
delusive. 

The functions of a consul require, in the first place, that 
he be not a subject of the state where he resides : as, in this 
case, he would be obliged in all things to conform to its 
orders, and thus, not be at liberty to acquit himself of the 
duties of his office. 

They seem even to require that the consul should be inde- 
pendent of the ordinary criminal justice of the place where 
he resides, so as not to be molested or imprisoned unless 
he himself violate the law of nations by some enormous crime. 

And, though the importance of the consular functions be 
not so great as to procure to the consuVs person the inviola^ 
bility and absolute independence enjoyed by public ministers, 
— yet, being under the particular protection of the sovereign 
who employs him, and intrusted with the care of his concerns, 
— ^if he commits any crime, the respect due to his master 
requires that he should be sent home to be punished. Such 
is the mode pursued by states that are inclined to preserve a 
good understanding with each other. But the surest way is, 
expressly to settle all these matters, as far as practicable, by 
the commercial treaty. 

attachment in the State courts, Kid- Ravara, 2 Dall. Rep. 297; Cornm, t. 

</crJ(nv.Jt%er, 2 Miles's Rep. 242; and Koziojgr, 5 Serg. & Rawle, 546; Tht 

to indictment for misdnneanour in the State v. De la Forest , 2 Nott Sc McCord's 

courts of the United Statea, which Rep. 645, contrd,} 
have exclusive jurifidiction, U. States v. 
290 



DiaNXIY AXr> BQUALITT OF NATIONS. 148 

Wiequefort, ia his treatiBe of The AmboMBodary Book I. book n. 
§ 5, Bays, that eonguh do not enjotf the protection of the law oHAP.n. 
of ncUionSy and that, both in civil and criminal cases, they are 
subject to the justice of the place where they reside. But the 
very instances he quotes contradict his proposition. The 
states-general of the United Proyinoes, whose consul had been 
afironted and put under arrest by the governor of Cadiz, corn- 
plained of it to the court of Madrid ens a breach of the law 
of nations. And, in the year 1634, the republic of Venice 
was near coming to a rupture with pope Urban VIIL on 
account of the violence offered to the Venetian consul by the 
governor of Ancona, The governor, suspecting this consul to 
have given information detrimental to the commerce of An- 
cona, had persecuted him, seized his furniture and papers, 
and caused him to be summoned, declared guilty of contumacy, 
and banished vMder pretence that, contrary to puhlic prohi- 
bition, he had caused goods to be unloaded in a time of con- [ 149 ] 
tagion. This consuFs successor he likewise imprisoned. The 
Venetian senate warmly insisted on having due satisfaction: 
and, on the interposition of the ministers of France, who 
were apprehensive of an open rupture, the pope obliged 
the governor of Ancona to give the republic satisfaction 
accordingly. 

In deftiult of treaties, custom is to be the rule on these 
occasions ; for, a prince, who receives a consul without ex- 
press conditions, is supposed to receive him on the footing 
established by custom. 



CHAP. III. 

OP THE DIGNITY AND EQUALITY OF NATIONS — OF TITLES, AND chap, m. 
OTHER MARKS OF HONOUR. 

EVERY nation, every sovereign and independent state, § 35. Dig- 
deserves consideration and respect, because it makes an im-^'»*y o^n»- 
mediate figure in the grand society of the human race, is^^^^j' 
independent of all earthly power, and is an assemblage of a gtates. 
great number of men, which is, doubtless, more considerable 
than any individual. The sovereign represents his whole 
nation ; he unites in his person all its majesty. No indivi* 
dual, though ever so free and independent, can be placed in 
competition with a sovereign ; this would be putting a single 

Serson upon an equality with a united multitude of his equals, 
rations and sovereigns are, therefore, under an obligation, 
and at the same time have a right, to maintain their dignity, 
and to cause it to be respected, as being of the utmost im- 
portance to their safety and tranquillity. 

231 



149 DIGNITY AND EQUALITY OF NATIONS. 

BOOK iL We have already observed (Prelim. § 18) that nature lias 
°^^^''°- eBtabliflhed a perfect equality of rights between independent 
$30. Their nations. Consequently, none can naturally lay claim to any 
equality, superior prerogative: for, whatever privileges any one of 
them derives from freedom and sovereignty, the others equally 
derive the same from the same source. 
S87. Pre- And since precedency or pre-eminence of rank is a prero- 
**^^^' gative, no nation, no sovereign, can naturally claim it as a 
right. Why should nations that are not dependent on him 
give up any point to him against their will ? However, as a 
powerful and extensive state is much more considerable in 
universal society than a small state, it is reasonable that the 
latter should yield to the former on occasions where one must 
necessarily yield to the other, as, in an assembly, — and should 
pay it those mere ceremonial deferences which do not, in 
fact, destroy their equality, and only show a superiority of 
order, a first place among equals. Other nations will natu- 
rally assign the first place to the more powerful state ; and 
it would be equally useless as ridiculous for the weaker one 
obstinately to contend about it. The antiquity of the state 
enters also into consideration on these occasions: a new 
[ 150 ] comer cannot dispossess any one of the honours he has en- 
joyed ; and he must produce very strong reasons, before he 
can obtain a preference. 
§38. The The form of government is naturally foreign to this ques- 
formofgo- tion. The dignity, the majesty, resides originally in the 
^mentis ]yQ^j of the State; that of the sovereign is derived from his 
tWs'quee- ropresenting the nation. And, can it be imagined that a 
tion. state possesses more or less dignity according as it is governed 

by a single person or by many ? At present kings claim a 
superiority of rank over republics : but this pretension has 
no other support than the superiority of their strength. For- 
merly, the Roman republic considered all kings as very far 
beneath them : but the monarchs of Europe, finding none 
but feeble republics to oppose them, have disdained to admit 
them to an equality. The republic of Venice, and that of 
the United Provinces, have obtained the honours of crowned 
heads ; but their ambassadors yield precedency to those of 
kings. 
§3d. A In consequence of what we have just established, if the 

state ought form of government in a nation happens to be changed, she 
ni^nou ^^^ ^^^'^ preserve the same honours and rank of which she 
withitand- ^^ before in possession. When England had abolished roy- 
ing any alty, Cromwell would sufier no abatement of the honours that 
changes in had been paid to the crown or to the nation; and he every- 

?* ^!?!^^ where maintained the English ambassadors in the rank they 
Its goyem* , j , , ® "^ 

ment had always possessed. 

§ 40. In If tt® grades of precedency have been settled by treaties, 

this respect, or by long custom founded on tacit consent, it is necessary 

treaties and to conform to the ostftblisbed rule, To dispute with a prince 

m 



DIGNITY AND EQUALITY OP NATIONS. 160 

the rank he has acquired in this manner, is doing him an book iv 
injury, inasmuch as it is an expression of contempt for him, ohap. m. 
or a violation of engagements that secure to him a right. esUUiahod 
Thus, by the injudicious partition between the sons of Charle- customs 
magne, the elder having obtained the empire, the younger, ^^^^^ '^^ 
who received the kingdom of France, yielded precedency to *^ ^ 
him the more readily, as there still remained at that time a 
recent idea of the majesty of the real Roman empire. His 
successors followed the rule they found established: — they 
were imitated by the other kings of Europe ; and thus the 
imperial crown continues to possess, without opposition, the 
first rank in Christendom. With most of the other crowns, 
the point of precedency remains yet undetermined. 

Some people would have us to look upon the precedency 
of the emperor as something more than the first place among 
equals ; they would fain attribute to him a superiority over 
all kings, and, in a word, make him the temporal head of 
Christendom.* And it, in fact, appears that many empe- 
rors entertained ideas of such pretensions, — as if, by reviving 
the name of the Roman empire, they could also revive its 
rights. Other states have been on their guard against these 
pretensions. We may see in Mezeray f the precautions taken [ 161 ] 
by king Charles V. when the emperor Charles IV. visited 
France, "for fear," says the historian, "lest that prince, 
and his son, the king of the Romans, should found any right 
of superiority on his courtesy." Bodinus relates, J that "the 
French took great ofience at the Emperor Sigismund's placing 
himself in the royal seat in full parliament, and at his having 
knighted the Senechal de Beaucaire," — ^adding, that, "to 
repair the egregious error they had committed in sufiering it, 
they would not allow the same emperor, when at Lyons, to 
make the Count of Savoy a duke." At present, a king of 
France would doubtless think it a degradation of his dignity, 
were he to intimate the most distant idea that another might 
claim any authority in his kingdom. || 

As a nation may confer on her conductor what degree of § 4i. Of the 
authority and what rights she thinks proper, she is equally |J»™« *»d 

* Bartolus went so far as to say, that Count Provana, the king of Sardinia's 

« all those were heretics who d^d not minister, to sign a deed, in which he 

believe that the emperor was lord of the declared that neither his own sovereign 

whole earth." See Bodinus's Republic, nor any other prince had a right to dis- 

book i. ch. ix. p. m. 139. pute pre-eminence with the emperor. 

t History of. France, explanation of Its contents being made public, the 

the medals of Charles V. kings made such heavy complaints on 

;{; In his Republic, p. 136. the occasion, that Provana was re- 

I Pentherrieder, minister plenipo- called, and the emperor ordered his 

tentiary of the emperor at the congress minister to suppress the deed, — affect- 

of Cambray, made an attempt to insure ing, at the same tune, a profound igno- 

to his master an incontestable superi- ranee of the whole transaction : and 

ority and pre-eminence over all the thus the affair was dropped. Memoirs 

other crowned heads. He induced of Mons. de St. Philippe, vol. iv. p. 194. 
90 n2 238 



151 DIGNITY AN© EQUALITY OP NATIONS. 

BooKn. free in regard to the name, the titles, and honoure with 
CHAP. iiL -fyhich she may choose to decorate him. But discretion and 
giYenbythethe Care of her reputation require that she should not, in 
nation to its this respect, deviate too far from the customs commonly 
conductor, established among civilized nations. Let us further observe, 
that, in this point, she ought to be guided by prudence, and 
inclined to proportion the titles and honours of her chief to 
the power he possesses, and to the degree of authority with 
which she chooses to invest him. Titles and honours, it is 
true, determine nothing: they are but empty names, and 
vain ceremonies, when they are misplaced: yet, who does 
not know how powerful an influence they have on the minds 
of mankind? This is, then, a more serious affair than it 
appears at the first glance. The nation ought to take care 
not to debase herself before other states, and not to degrade 
her chief by too humble a title : she ought to be still more 
careful not to swell his heart by a vain name, by unbounded 
honours, so as to inspire him with the idea of arrogating to 
himself a commensurate authority over her, or of acquiring 
a proportionate power by unjust conquests. On the other 
hand, an exalted title may engage the chief to support, with 
greater firmness, the dignity oT the nation. Prudence is 
guided by circumstances, and, on every occasion, keeps 
within due bounds. " Royalty," says a respectable author, 
who may be believed on this subject, '^ rescued the house 
of Brandenburg from that yoke of servitude under which 
the house of Austria then kept all the German princes. 
This was a bait which Frederic I. threw out to all his pos- 
terity, saying to them, as it were, I have acquired a title for 
[ 162 ] you ; do you render yourselves worthy of it : I have laid the 
foundations of your greatness ; it is you who are to finish the 
work."* 
§ 42. Whe- If the conductor of the state is sovereign, he has in his 
thera sove- hands the rights and authority of the political societv; and 
reign may consequently he may himself determine what title he will 
wliat title ^sume, and what honours shall be paid to him, unless these 
and honours have been already determined by the fundamental laws, or 
he pleases, that the limits which have been set to his power manifestly 
oppose such as he wishes to assume. His subjects are equally 
obliged to obey him in this as in whatever he commands 
by virtue of a lawful authority. Thus, the Czar Peter I., 
grounding his pretensions on the vast extent of his dominions, 
took upon himself the title of emperor. 
S 4a Right But foreign nations are not obliged to give way to the will 
of other na- of a Sovereign who assumes a new title, or of a people who 
call their chief by what name they please.f 



tionsin this 
respecU 



* Memoin of the House of Branden- — <« OIiTaiius, Dominus Protector An- 

buTg. gliie, Scotie, et Hiberais, Ludovioo 

t Cromwell, in writing to Louis the XIV. Francorum Regi Christianisaime 

Fourteenth, used the following style : Rex.'' — ^And the subscription 
234 



DiaKITT ANB SQUALITT OF NATIONS. 152 

However, if this title has nothing unreasonable, or con- book n. 
trary to received customs, it is altogether agreeable to the ohap. m. 
mutual duties which bind nations together, to give to a sove- § 44. Their 
reign or conductor of a state the same title that is given him duty, 
by his people. But, if this title is contrary to custom — ^if it 
implies attributes which do not belong to him who affects it, 
foreign nations may refuse it without his having reason to 
complain. The title of "Majesty" is consecrated by custom 
to monarchs who command great nations. The emperors of 
Germany have long affected to reserve it to themselves, as 
belonging solely to the imperial crown. But the kings 
asserted with reason that there was nothing on earth more 
eminent or more august than their dignity : they therefore 
refused the title of Majesty to him who refused it to them ;* 
and at present, except in a few instances founded on parti- 
cular reasons, the title of Majesty is a peculiar attribute of the 
royal character. 

As it would be ridiculous for a petty prince to take the 
title of king, and assume the style of " Majesty,*' foreign 
nations, by refusing to comply with this whim, do nothing 
but what is conformable to reason and their duty. However, 
if there reigns anywhere- a sovereign, who, notwithstanding 
the small extent of his power, is accustomed to receive from 
his neighbours the title of king, distant nations who would [ 153 "j 
carry on an intercourse with him cannot refuse him that 
title. It belongs not to them to reform the customs of distant 
countries. 

The sovereign who wishes constantly to receive certain §46. How 
titles and honours from other powers, must secure them by ^^^ ^^ 
treaties. Those who have entered into engagements in this ™*^ij^g^ 
way are obliged to conform to them, and cannot deviate cured, 
from the treaties without doing him an injury. Thus, in 
the examples we have produced (§§ 41 and 42), the 'czar and 
the king of Prussia took care to negotiate beforehand with 
the courts in friendship with them, to secure their being ac- 
knowledged under the new titles they intended to assume. 

The popes have formerly pretended that it belonged to 
the tiara alone to create new crowns ; they had the confi- 
dence to expect that the superstition of princes and nations 
would allow them so sublime a prerogative. But it was 

M In Aula nostra Alba. Tester bonus * At the famous treaty of West- 

amicuB." The court of France was phatia, the plenipotentiaries of France 

highly oifended at this form of address, agreed with those of the emperor, 

The ambassador Boreel, in a letter to <*that the king and queen writing 

the Pensionary De Witt, dated May 25, with their own hand to the emperor, 

1655, said that Cromwell's letter had and ^giving him the title of majesty, 

not been presented, and that those who he should answer them, with his own 

were charged with the deliveiy of it, hand, and give them the same title." 

had withheld it, through an apprehen- Letter of the plenipotentiaries to M. 

lion of its giving rise to some misunder^ de Brienne, Oct. 15Ui, 1646. 
standing between the two countries. 

835 



163 DIGNITY AKD EQUALITY OP NATIONS. 

BOOK II. eclipsed at the revival of letters,* The emperors of Ger- 
CHAP, m. many, who formed the same pretensions, were at least coun- 
tenanced bj the example of the ancient Roman emperors. 
They only want the same power in order to have the same 
right. 
§ 46. We In default of treaties, we ought, with respect to titles, and, 
muBt con- jn general, every other mark of honour, to conform to the 
n^ cu*-^ ^^ estabUshed by general custom. To attempt a deviation 
torn. (103) from it with respect to a nation or sovereign, when there is no 
particular reason for such innovation, is expressing either 
contempt or ill-will towards them ; — a conduct equally incon- 
sistent with sound policy and with the duties that nations owe 
to each other. (102) 
§ 47. Mu- The greatest monarch ought to respect in every sovereign 
tual respect the eminent character with which he is invested. The in- 
which Bove- dependence, the equality of nations, the reciprocal duties of 
rci^^owe ijmnj^jji^y^ — a^u these circumstances should induce him to pay, 
other. even to the chief of a petty state, the respect due to the 
station which he fills. The weakest state is composed of men 
as well as the most powerful : and our duties are the same 
towards all those who do not depend on us. 

But this precept of the law of nature does not extend be- 
yond what is essential to the respect which independent 
nations owe to each other, or that conduct, in a word, which 
shows that we acknowledge a state or its chief to be truly 
independent and sovereign, and consequently entitled to 
every thing due to the quality of sovereignty. But, on the 
other hand, a great monarch being, as we have already ob- 
served, a very important personage in human society, it is 
natural, that, in matters merely ceremonial, and not deroga- 
tory to the equality of rights between nations, he should 
[ 154 ] receive honours to which a petty prince can have no preten- 
sions : and the latter cannot refuse to pay the former every 
mark of respect which is not inconsistent with his own inde- 
pendence and sovereignty. 
§48. How Every nation, every sovereign, ought to maintain thoir 
a sovereign dignity (§85) by causing due respect to be paid to them; 
ought to 
maintain his 

dignity. * Catholic princes receive stiU from of 2cl vol. p. 324. See, as to the sea 

(103) the pope titles that relate to religion, and incidents, antef 125 and 131 in 

Benedict XIV. gave that of « Most notes ; and Cours de Droit Public, torn. 

Faithful" to the king of Portugal ; 2, p. 80 to 84, and 396 to 406.—^. 

and the condescension of other princes (103) The House of Lords recently, 

connived at the imperative style in rather facetiously, maintained the dig- 

which the bull is couched. — ^It is dated nity of the king of Spain, by declining 

December 23, 1748. to give fdm costs, on the same principle 

(102) Formerly all nations used to that our king docs not recover oosta, 

observe, in the British seas, the mark saying, we will not disparage the dig- 

of honour, by lowering the flag or top- nity of the king of Spain by giving 

sail to an English man of war, called him costs. Hewlett v. King of Spain, 

the duty of ihejlag. See 1 Chitty's on appeal from Chancery to House of 

Commercial Law, 102 ; and see end Lords, 1 Dow Rep. New Series, 177. 

236 



154 

and, especially, they ought not to suffer that dignity to be book ii. 
impaired. If, then, there are titles and honours, which, by chap, m. 
constant custom, belong to a prince, he may insist upon 
them ; and he ought to do it on occasions where his glory is 
concerned. 

But it is proper to distinguish between neglect or the omis- 
sion of what the established usage requires, and positive acts 
of disrespect and insult. The prince may complain of an 
instance of neglect, and, if it be not repaired, may consider 
it as an indication of ill-will : he has a right to demand, even 
by force of arms, the reparation of an insult. The czar Peter 
the First, in his manifesto against Sweden, complained that 
the cannon had not been fired on his passing at Biga. He 
might think it strange that they did not pay him this mark 
of respect, and he might complain of it ; but, to have made 
this the subject of a war, must have indicated a preposterous 
prodigality of human blood. 



CHAP. IV. 

OP THB RIGHT TO SECURITY, AND THB EFFECTS OP THE SOVB- cnAP. lY. 
RBIQNTT AND INDEPENDENCE OP NATIONS. (104) 

IN vain does nature prescribe to nations, as well as to indi- § 49. Right 
viduals, the care of self-preservation, and of advancing their to aecurity. 
own perfection and happiness, if she does not give them a 
right to preserve themselves from every thing that might 
render this care ineffectual. This right is nothing more than 
a moral pow^ of acting ^ that is, the power of doing what is 
morally possible — what is proper and conformable to our 
duties. We have, then, in general, a right to do whatever is 
necessary to the discharge of our duties. Every nation, as 
well as every man, has, therefore, a right to prevent other 
nations from obstructing her preservation, her perfection, 
and happiness, — that is, to preserve herself from all injuries 
(§ 18) : and this right is a perfect one, since it is given to 
satisfy a natural and indispensable obligation : for, when we 
cannot use constraint in order to cause our rights to be re- 
spected, their effects are very uncertain. It is this right 
to preserve herself from all injury that is called the right to 
%ecur%ty. 

It is safest to prevent the evil when it can be prevented. § 60. It pro- 
A nation has a right to resist an injurious attempt, and to ^^^ ^® 
make use of force and every honourable expedient against ^ftwiw-"" 

(104) Ab to the independence of Public Paris, A. D. 1830, torn. 3, 1st 
nations, see in general, Conrs de Droit part, article iL pp. 3 to 15. 

237 



154 OP THB RiaHT TO SECURITY^ ETO. 

BOOK u. whosoever is actually engaged in opposition to her, and even 

CHAP. IV. to anticipate his machinations, observing, however, not to 

attack him upon vague and uncertain suspicions, lest she 

should incur the imputation of becoming herself an unjust 

[ 155 ] aggressor. 

§51. and When the evil is done, the same right to security autho- 
that of ob- rizes the offended party to endeavour to obtain a complete 
wSon^ reparation, and to employ force for that purpose, if neces- 

^^' sary. 
§62. and Finally, the offended party have a right to provide for 
the right of their future security, and to chastise the offender, by inflict- 
puniahmg. jj^g ^^^^ -^^ ^ punishment capable of deterring him thence- 
forward from similar aggressions, and of intimidating those 
who might be tempted to imitate him. They may even, if 
necessary, disable the aggressor from doing further injury. 
They only make use of their right, in all these measures, 
which they adopt with good reason : and if evil thence results 
to him who has reducea them to the necessity of taking such 
steps, he must impute the consequences only to his own in- 
justice. 
§63. Right If, then, there is anywhere a nation of a restless and mis- 
ofallna- chievous disposition, ever ready to injure others, to traverse 
a mSSe^* their designs, and to excite domestic disturbances in their 
vouii people dominions, — it is not to be doubted that all the others have 
a right to form a coalition in order to repress and chastise that 
nation, and to put it for ever after out of her power to injure 
them. Such would be the just fruits of the policy which 
Machiavel praises in Caesar j^orgia. The conduct followed 
by Philip 11. king of Spain, was calculated to unite all 
Europe against him ; and it was from just reasons that Heiiry 
the Great formed the design of humbling a power whose 
strength was formidable, and whose maxims were pernicious. 
The three preceding propositions are so many principles 
that furnish the vai^ious foundations for a just war, as we shall 
see in the proper place. 
§ 64. No ^* is ^^ evident consequence of the liberty and independ- 
nation has oncc of nations, that all have a right to be governed as they 
a right to think proper, and that no state has the smallest right to 
mterferem interfere in the government of another. Of all the rights 
mentM^an- *^** ^*^ belong to a nation, sovereignty is, doubtless, the 
other state, most precious, and that which other nations ought the most 
scrupulously to respect, if they would not do her an in- 
jury. (105) 

The sovereign is he to whom the nation has intrusted the 

(106) Nor has a subject of one state state assist a revolted colony, it is just 

a right to enter into any contract with, ground of war on the part of the parent 

or to assist the revolted oohmy of an- state. Thompwn v. Povdei, 3 8inMm's 

other before die same has been for- R^. 194; Taykr v. Barclay, id. Sia 

mally recognised as an independent Jlnttf p. 141, note 96. 
state by its own government; and if a 
838 



OP THE RIGHT TO SBOUKITY, ETC. 166 

empire and the care of the government : she has invested him book n. 
with her rights ; she alone is directly interested in the manner chap, iv. 
in which the conductor she has chosen makes use of his power. § 55. one 
It does not, then, belong to any foreign power to take cog- sovereign 
nisance of the administration of that sovereign, to set himself cannotaiake 
up for a judge of his conduct, and to oblige him to alter it. j^^ ofthe 
If he loads his subjects with taxes, and if he treats them with oonduct of 
severity, the nation alone is concerned in the business ; and another, 
no other is called upon to oblige him to amend his conduct, 
and follow more wise and equitable maxims. It is the part 
of prudence to point out the occasions when officious and ami- 
cable representations may be made to him. The Spaniards 
violated all rules when they set themselves up as judges of 
the Inca Athualpa. If that prince had violated the law of 
nations with respect to them, they would have had a right to [ 166 ] 
punish him. But they accused him of having put some of his 
subjects to death, of having had several wives, &c. — ^things, 
for which he was not at all accountable to them ; and, to fill 
up the measure of their extravagant injustice, they condemned 
him by the laws of Spain.* 

But, if the prince, by violating the fundamental laws, gives §56. How 
his subjects a legal right to resist him, — if tyranny, becom- fiur lawfij to 
ing insupportable, obliges the nation to rise in their own de- interfere in 
fence, — every foreign power has a right to succour an ^P- JJ?^^, 
pressed people who implore their assistance. The English aovereign 
justly complained of James II. The nobility and the most and his suh- 
distinguished patriots having determined to check him in the J^^- 
prosecution of his schemes, which manifestly tended to over- 
throw the constitution, and to destroy the liberties and the 
religion of the people, applied for assistance to the United 
Provinces. The authority of the Prince of Orange had, 
doubtless, an influence on the deliberations of the states- 
general ; but it did not lead them to the commission of an 
act of injustice : for, when a people, from good reasons take 
up arms against an oppressor, it is but an act of justice and 
generosity to assist brave men in the defence of their liber- 
ties. Whenever, therefore, matters are carried so far as to 
produce a civil war, foreign powers may assist that party 
which appears to them to have justice on its side. He who 
assists an odious tyrant, — he who declares for an unjust and 
rebellious people, — ^violates his duty. But, when the bands 
of the pohtical society are broken, or at least suspended, 
between the sovereimi and his people, the contending parties 
may then be considered as two custinct powers ; and, since 
they are both equally independent of all foreign authority, 
nobody has a right to judge them. Either may be in the 
right ; and each of those who grant their assistance may ima- 
gine that he is acting in support of the better cause. It fol- 

* GarcUlasso de la Vega. 

289 



156 OF THB RIGHT TO SKCUMTT, ETC. 

BOOK n. lows, then, in virtue of the voluntary law of nations (see 
CHAP. IV. Prelim. § 21), that the two parties may act as having an equal 
right, and behave to each other accordingly till the decision 
of the affair. 

But we ought not to abuse this maxim, and make a handle 
of it to authorize odious machinations against the internal 
tranquillity of states. It is a violation of the law of nations 
to invite those subjects to revolt who actually pay obedience 
to their sovereign, though they complain of his government. 
The practice of nations is conformable to our maxims. 
When the German protestants came to the assistance of the 
reformed party in France, the court never attempted to treat 
them otherwise than on the usual footing of enemies in general, 
and according to the laws of war. France was at the same 
time engaged in assisting the Netherlands then in arms against 
Spain, and expected that her troops should be considered in 
no other light than as auxiliaries in a regular war. But no 
power ever fails to complain, as of an atrocious wrong, if 
any one attempts by his emissaries to excite his subjects to 
revolt, 
t 157 ] As to those monsters who, under the title of sovereigns, 
render themselves the scourges and horror of the human race, 
they are savage beasts, whom every brave man may justly 
exterminate from the face of the earth. All antiquity has 
praised Hercules for delivering the world from an Antseas, a 
jSusiris, and a Diomede. 
§ 57. Right After having established the position that foreign nations 
of opposmg have no right to interfere in the government of an independ- 
^'^^ oi^for-" ^^^ ®*^^*^' ^* ^® ^^^ difficult to prove that the latter has a right 
eign powers *^ oppose such interference. To govern herself according to 
intheaffainher own pleasure, is a necessary part of her independence, 
of govern- A sovereign state cannot be constrained in this respect, except 
"*®^*' it be from a particular right which she has herself given to 
other states by her treaties ; and, even if she has given them 
such a right, yet it cannot, in an affair of so delicate a nature 
as that of government, be extended beyond the clear and 
express terms of the treaties. In every other case, a sove- 
reign has a right to treat those as enemies who attempt to 
interfere in his domestic affairs otherwise than by their good 
offices. 
§58. The Religion is in every sense an object of great importance to 
same rights ^ nation, and one of the most interesting subjects on which 
toreliriStt.^*^® government can be employed. An independent people 
are accountable for their religion to God alone; in this par* 
ticular, as in every other, they have a right to regulate their 
conduct according to the dictates of their own conscience, 
and to prevent all foreign interference in an affair of so deli- 
cate a nature.* The custom, long kept up in Christendom, 

* When, however, we see a party the religion we profess, and a neigh> 
inflamed with deadly hatred against bowing prince persecuting in oonse- 
S40 



OP THE RIGHT TO SBCCRITT, ETC. 167 

of causing ftll the affairs of religion to be decided and regu- book ii. 
lated in a general council, could only have been introduced chap, it. 
by the singular circumstance of the Submission of the whole 
church to the same civil government, — the Roman empire. 
When that empire was overthrown, and gave place to many 
independent kingdoms, this custom was found contrary to 
the first principles of government, to the very idea of inde- 
pendent states and political societies. It was, however, long 
supported by prejudice, ignorance, and superstition, by the 
authority of the popes and the power of the clergy, and still 
respected even at the time of the reformation. The states 
who had embraced the reformed religion offered to submit to 
the decisions of an impartial council lawfully assembled. At 
present they would not hesitate to declare, that, in matters 
of religion, they are equally independent of every power on 
earth, as they are in the affairs of civil government. The 
general and absolute authority of the pope and council is [ 158 ] 
absurd in every other system than that of those popes who 
strove to unite all Christendom in a single body, of which 
they pretended to be the supreme monarchs.* But even 
Catholic sovereigns have endeavoured to restrain that autho- 
rity within such limits as are consistent with their supreme 
power: they do not receive the decrees of councils or the 
popes' bulls till they have caused them to be examined ; and 
these ecclesiastical laws are of no force in their dominions 
unless confirmed by the prince. In the first book of this 
work, Chap. XII. we have sufficiently established the rights 
of a state in matters of religion; and wo introduce them 
here again, only to draw just consequences from them with 
respect to the conduct which nations ought to observe towards 
each other. 

It is, then, certain that we cannot, in opposition to the will § 59. Nona- 
of a nation, interfere in her religious concerns, without vio- ^^^ ^ ^ 
lating her rights, and doing her an injury. Much less are ^^SJ*J^J^ 
we allowed to employ force of arms to oblige her to receive to religioiu 
a doctrine and a worship which we consider as divine. What 
right have men to set themselves up as the defenders and pro- 
tectors of the cause of God ? He can, whenever he pleases, 
lead nations to the knowledge of himself, by more effectual 
means than those of violence. Persecutors make no true con- 
verts. The monstrous maxim of extending religion by the 
sword, is a subversion of the rights of mankind, and the most 

quenoe the profeeaora of that religion, nature requirw that I should antid* 
it is lawftil for us to give assistance to pate and prevent the evil which may 
the tmfbten, — as it was well remarked thence result to mysel£" — ^Le Vassor, 
by James L of England to Bouillon Hutory of Louis XHI. 
the ambassador of Maiy de Medici, * See above, $ 46, and Bodinus'a 
<[oeen-regent of France, — « When my Republic, book i. c ix, with his quo- 
neighbours are attacked in a quarrel tations, p. m. 139. 
m whidi I am interested, the law of 

31 V Ml 



158 



OF THB RIGHT TO SECURITY, BTO. 



BOOK II. 
CHAP. IV. 



S 60. Offi. 
ces of hu- 
manity in 
these mat- 
ten. 

Misnona- 
riea. 



[159] 



§61. Cir- 
cumspection 
to he used. 



terrible scourge of nations. Every madman will fancy he is 
fighting in the cause of God, and every aspiring spirit will 
use that pretext as a doak for his ambition. WhUe Char- 
lemagne was ravaging Saxony with fire and sword, in order 
to plant Christianity there, the successors of Mohammed were 
ravaging Asia and Africa, to establish the Koran in those 
parts. 

But it is an office of humanity to labour, by mild and law- 
ful means, to persuade a nation to receive a religion which 
we believe to be the only one that is true and salutary. Mis- 
sionaries may be sent to instruct the people ; and this care is 
altogether comformable to the attention which ^very nation 
owes to the perfection and happiness of others. But it must 
be observed, that, in order to avoid doing an injury to the 
rights of a sovereign, the missionaries ought to abstain from 
preaching clandestinely, or without his permission, a new doc- 
trine to his people. He may refuse to accept their proffered 
services ; and, if he orders them to leave his dominions, they 
ought to obey. They should have a very express order from 
the King of kings, before they can lawfully disobey a sove- 
reign who commands according to the extent of his power ; 
and the prince who is not convinced of that extraordinary 
order of the Deity, will do no more than exert his lawful 
rights, in punishing a missionary for disobedience. But, 
what if the nation, or a considerable part of the people, are 
desirous of retaining the missionary, and following his doc- 
trine ? In a former part of the work (Book I. §§ 128—186), 
we have established the rights of the nation and those of the 
citizens ; and thither we refer for an answer to this question. 

This is a very delicate subject ; and we cannot authorize 
an inconsiderate zeal for making proselytes, without endan- 
gering the tranquillity of all nations, and even exposing those 
who are engaged in making converts to act inconsistently 
with their duty, at the very time they imagine they are accom- 
plishing the most meritorious work. For, it is certainly per- 
forming a very bad office to a nation, and doing her an essen- 
tial injury, to spread a false and dangerous religion among 
the inhabitants. Now, there is no person who does not be- 
lieve his own religion to be the only true and safe one. ^ Be- 
commend, kindle in all hearts, the ardent zeal of the missiona- 
ries, and ^ou will see Europe inundated with Lamas, Bonzes, 
and Dervises, while monks of all kinds will overrun Asia and 
Africa. Protestant ministers will crowd to Spain and Italy, 
in defiance of the Incmisition, while the Jesuits will spread 
themselves among the Frotestants in order to bring them back 
into the pale of the church. Let the Catholics reproach the 
Protestants as much as they please with their lukewarmness, 
the conduct of the latter is undoubtedly more agreeable to 
reason and the law of nations. True zeal applies itself to 
the task of making a holy religion flourish in the countries 

S4S 



ETC. 153 

where it is received, and of rendering it useful to the man- book u. 
ners of the people and to the state : and, without forestalling qhap^it. 
the dispositions of Providence, it can find sufficient employ- 
ment at home, until an invitation come from foreign nations^ 
or a very evident commission be given from heaven, to 
preach that religion abroad. Finally, let us add, that, before 
we can lawfully undertake to preach a particular religion to the 
various nations of the earth, we must ourselves be thoroughly 
convinced of its truth by the most serious examination, — 
"What ! can Christians doubt of their religion V* — ^The Mo- 
hammedan entertains no doubt of his. Be ever ready to 
impart your knowledge, — simply and sincerely expose the 
principles of your belief to those who are desirous of hearing 
you : instruct them, convince them by evidence, but seek not 
to hurry them away with the fire of enthusiasm. It is a suffi- 
cient charge on each of us, to be responsible for his own con- 
science. — 'Thus, neither will the light of knowledge be refused 
to any who wish to receive it, nor will a turbulent zeal disturb 
thepeace of nations. 

When a religion is persecuted in one country, foreign na- § 62. What 
tions who profess it may intercede for their brethren : but * ■©▼ewiga 
this is all they can lawfully do, unless the persecution be car- ^y^^^^^ 
ried to an intolerable excess : then, indeed, it becomes a case ^^g^ ^^o 
of manifest tyranny, in opposition to which all nations are profees his 
allowed to assist an unhappy people (§ 66). A regard to religion in 
their own safety may also authorize them to undertake the ^^ 
defence of the persecuted sufferers. A king of France re- 
plied to the ambassadors who solicited him to suffer his sub- 
jects of the reformed religion to live in peace, "tliat he was 
master in his own kingdom." But the Protestant sovereigns, 
who saw a general conspiracy of the Catholics obstinately [ 160 ] 
bent on their destruction, were so far masters on their side 
as to be at liberty to give assistance to a body of men who 
might strengthen their party, and help them to preserve 
themselves from the ruin with which they were threatened. 
AH distinctions of states and nations are to be disregarded, 
when there is question of forming a coalition against a set 
of madmen who would exterminate all those that do not im- 
plicitly receive their doctrines. 



M8 



160 OF THE OBSIRYANOB OF JUSTICE BETWEEN NATIOKEL 

BOOK II. 
CHAP. V. 

CHAP, V. 

OF THE OBSERYAKCE OF JUSTICE BETWEEN NATIONS. 

§ 63. ]ye- Justice *is the basis of all society, the sure bond of all 
cessityofthe commerce. Human society, far from being an intercourse 
of jMticehi ^^ asMStance and good offices, would be no longer any thing 
human bo- but a vast scene of robbery, if no respect were paid to this 
dety. virtue, which secures to every one his own. It is still more 

necessary between nations than between individuals ; because 
injustice produces more dreadful consequences in the quarrels 
of these powerful bodies politic, and it is more difficult to 
obtain redress. The obligation imposed on all men to be just 
is easily demonstrated from the law of nature. We here take 
that obligation for granted (as being sufficiently known), and 
content ourselves with observing that it is not only indispen- 
sably binding on nations (Prelim. § 6), but even still more 
sacred with respect to them, from the importance of its con- 
sequences. 
S 64. Obli- All nations are therefore under a strict obligation to culti- 
gation of all yate justice towards each other, to observe it scrupulously, 
culSrSr *^^ carefully to abstain from every thing that may violate it. 
and observe S&ch ouffht to render to the others what belongs to them, to 
justioe. respect their rights, and to leave them in the peaceable en- 
joyment of them.* 
§ 65. Right From this indispensable obligation which nature imposes 
of refiwing qj^ nations, as well as from those obligations which each na- 
J^JUJ^* *^ tion owes to herself, results the right of every state not to 
suffer any of her rights to be taken away, or any thing which 
lawfully belongs to her : for, in opposing this, she only acta 
in conformity to all her duties ; and therein consists the right 
[ 161 ] (§ 49). 

§ 66. ThiB This right is a perfect one, — that is to say, it is accompa- 
right is a iiied with the right of using force in order to assert it. In 
perfect one. ^^^j^ would nature give us a right to refuse submitting to in- 
justice, — ^in vain would she oblige others to be just in their 
dealings with us, if we could not lawfully make use of force, 

* Might not this duty be extended be executed on requisition made by those 
to the execution of sentences passed in parliaments. But I do not know that 
other countries according to the neoes- the tribunals of this country act in the 
sary and usual forms 1 — On this subject same manner with respect to sentences 
M. Van Bouningin wrote as follows to passed in Holland ; and, if they do not, 
M. De Witt, Oct. 15, 1666: << By what an agreement might be made, that 
the courts of Holland have decreed in the sentences passed on either side against 
affair of one Koningh, of Rotterdam, I subjects of the other state ahall only 
Bee they suppose that eve^ judgment take effect on such property aa the eon- 
pronounced by the parliaments of demned party is found to poness in 
France against the inhabitants of Hoi- the state where the sentence has been 
land injudicio coiUradiOorh, ought to given." 
944 



GONOB&N 07 A NATION In'tHE ACTIONS OF HBB CITIZENS. I6l 

when they refused to discharge this duty. The just would book u. 
lie at the mercy of avarice and injustice, and all their rights ^°^^- ^- 
would soon become useless. 

From the foregoing right arise, as distinct branches, first, § 67. Itpro- 
the right of a just defence, which belongs to erery nation, — duces i. The 
or the right of making use of force against whoever attacks j^^ ^ 
her and her rights. This is the foundation of defensive war. 

Secondly, the right to obtain justice by force, if we cannot § ^- ^jT^® 
obtain it otherwise, or to pursue our right by force of arms, o^^^es"*^ 
This is the foundation of offensive war. justice. 

An intentional act of injustice is undoubtedly an injury. § 69. The 
We have, then, a right to punish it, as we have shown above, right of pun- 
in speaking of injuries in general (§ 52). The right of refus- J^ ""^"^ 
ing to suffer injustice is a branch of the right to security. 

Let us apply to the unjust what we have said above (§ 53) § 70. Right 
of a mischievous nation. If there were a people who made ^^ ^ ^^ 
open profession of trampling justice under foot, — who <i^- one*thS™** 
spised and violated the rights of others whenever they found openly de- 
an opportunity, — ^the interest of human society would author'-episesjus- 
ize all the other nations to form a confederacy in order to hum- ' 
ble and chastise the delinquents. We do not here forget the 
maxim established in our Preliminaries, that it does not be- 
long to nations to usurp the power of being judges of each 
other. In particular cases, where there is room for the 
smallest doubt, it ought to be supposed that each of the parties 
may have some right : and the injustice of the party that has 
committed the injury may proceed from error, and not from 
a general contempt of justice. But if, by her constant max- 
ims, and by the whole tenor of her conduct, a nation evidently 
proves herself to be actuated by that mischievous disposition, 
— ^if she regards no right as sacred, — the safety of the human 
race requires that she should be repressed. To form and sup- 
port an unjust pretension, is only doing an injury to the party 
whose interests are affected by that pretension ; but, to de- 
spise justice in general, is doing an injury to all nations. 



tice. 



CHAP. VL 

OF THE CONCERN A NATION MAT HAVE IN THE ACTIONS OF ohap. vi. 
HER CITIZENS. 

We have seen in the preceding chapters what are the com- 5 7i. The 
mon duties of nations towards each other, — ^how they ought sovereign 
mutually to respect each other, and to abstain from all injury ^^ ^j*" 
and all offence, — and how justice and equity ought to reign injuries of 
between them in their whole conduct. But hitherto we have the state, 
only considered the actions of the body of the nation, of the and to pro- 

v2 245 



161 CONCERN OP A NATION 

BOOK II. state, of the sovereign. Private persons who are members 

CHAP. VI. of one nation, may offend and ill-treat the citizens of another, 

tect the dti- and may injure a foreign sovereign : — it remains for us to 

^"i«o 1 ®^*^^^ ^^^^ share a state may have in the actions of her 

[ 1^^ ] citizens, and what are the rights and obligations of sbvereigns 

in this respect. 

Whoever offends the state, injures its rights, disturbs its 
tranquillity, or does it a prejudice in any manner whatsoever, 
declares himself its enemy, and exposes himself to be justly 
punished for it. Whoever uses a citizen ill, indirectly offends 
the state, which is bound to protect this citizen ; and the 
sovereign of the latter should avenge his wrongs, punish the 
aggressor, and, if possible, oblige him to make full repara* 
tion ; since otherwise the citizen would not obtain the great 
end of the civil association, which is, safety. 
§ 72. He But, on the other hand, the nation or the sovereign ought 
ought not to not to suffer the citizens to do an injury to the subjects of an- 
suh'wteto ^*^®^ state, much less to offend that state itself: and this, not 
offeiS other only bccause no sovereign ought to permit those who are 
nations or under his command to violate the precepts of the law of na- 
their dti- ture, which forbids all injuries, — ^but also because nations 
""^ ought mutually to respect each other, to abstain from all 

offence, from all injury, from all wrong, — ^in a word, from 
every thing that may be of prejudice to others. If a sove- 
reign, who might keep his subjects within the rules of justice 
ana peace, suffers them to injure a foreign nation either in 
its body or its members, he does no less injury to that nation 
than if he injured it himself. In short, the safety of the 
state, and that of human society, requires this attention from 
every sovereign. If you let loose the reins to your subjects 
against foreign nations, these will behave in the same manner 
to you ; and, instead of that friendly intercourse which nature 
has established between all men, we shall see nothing but one 
vast and dreadful scene of plunder between nation and nation. 
f 73. The However, as it is impossible for the best regulated state, 
actsofindi- or for the most vigilant and absolute sovereign, to model at 
n^^to'be* ^ pleasure all the actions of his subjects, and to confine 
imputed to them on every occasion to the most exact obedience, it would 
the nation, be unjust to impute to the nation or the sovereign every fault 
committed by the citizens. We ought not, then, to say, in 
general, that we have received an injury from a nation because 
we have received it from one of its members. 
S 74. nnlesB But, if a nation or its chief approves and ratifies the act 
it apinoTeB of the individual, it then becomes a public concern ; and the 
OT ratifiee injured party is to consider the nation as the real author of 
^"^ the injury, of which the citizen was perhaps only the instru* 
§76. Con- ment. 

^bl^ivedbv ^^ *^® offended state has in her power the individual who 
Sie offend^ ^1*8 done the injury, she may without scruple bring him to 
party. justice and punish him. If he has escaped and returned to 

246 



IN THB ACTIONS OF HBR CITIZENS. 162 

his own country, she ought to apply to his sovereign to haye book n. 
justice done in the case. c=^- ^• 



And, since the latter ought not to suffer his subjects to £ 163 ] 
molest the subjects of other states, or to do them an injury, ^76. Dutj 
much less to give open, audacious offence to foreign powers, ^^ ***« ^' 
he ought to compel the transs^ressor to make reparation for?*^"**" 
the damage or mjury, if possible, or to mnict on him an ex- 
emplary punishment ; or, finally, according the nature and cir- 
cumstances of the case, to deliver him up to the offended state, 
to be there brought to justice. This is pretty generally ob- 
served with respect to great crimes, which are equally con- 
trary to the laws and safety of all nations. Assassins, incen- 
diaries, and robbers, are seized everywhere, at the desire of 
the sovereign in whose territories the crime was committed, 
and are delivered up to his justice. The matter is carried 
still farther in states that are more closely connected by friend- 
ship and good neighbourhood. Even in cases of ordinary 
trangressions, which are only subjects of civil prosecution, 
either with a view to the recovery of damages, or the inflic- 
tion of a slight civil punishment, the subjects of two neigh- 
bouring states are reciprocally obliged to appear before the 
magistrate of the place where they are accused of having 
failed in their duty. Upon a requisition of that magistrate, 
called Letters Rogatory, they are summoned in due form by 
their own magistrates, and obliged to appear. An admirable 
institution, by means of which many neighbouring states live 
together in peace, and seem to form only one republic ! This 
is in force throughout all Switzerland. As soon as the Let- 
ters Rogatory are issued in form, the superior of the accused 
is bound to enforce them. It belongs not to him to examine 
whether the accusation be true or false : he is to presume on 
the justice of his neighbour, and not suffer any doubts on his 
own part to impair an institution so well calculated to pre* 
serve harmony and good understanding between the states. 
However, if by constant experience he should find that his 
subjects are oppressed by the neighbouring magistrates who 
summon them before their tribunals, it would undoubtedly be 
right in him to reflect on the protection due to his people, 
and to refuse the rogatories till satisfaction were given for the 
abuses committed, and proper steps taken to prevent a repe- 
tition of them. But, in such case, it would be his duty to 
allege his reasons, and set them forth in the clearest point 
of view. 

The sovereign who refuses to cause reparation to be made § 77. If he 
for the damage done by his subject, or to punish the offender, refiwes ju»- 
or, finally, to deliver him up, renders himself in some mea- ^J^\ 
sure an accomplice in the injury, and becomes responsible p^r^ ^ the 
for it. But, if he delivers up either the property of the fault and 
offender, as an indemnification, in cases that will admit of o&nee, 
pecuniary compensation — or his person, in order that he may 



168 SFFB0T8 OF THE DOMAIN BBTWEKK KATIOKS. 

BOOK n. Buffer the punishment due to his crime, the offended party^ 
^"'^^ ^' has no further demand on him. King Demetrius, having de- 
[ 164 ] livered to the Romans those who had killed their ambassador, 
the senate sent them back, resolving to reserve to themselves 
the liberty of punishing that crime, by avenging it on the 
king himself, or on his dominions.* If this was really the 
case, and if the king had no share in the murder of the Ror 
man ambassador, the conduct of the senate was highly unjust, 
and only worthy of men who sought but a pretext to cover 
their ambitious enterprises, 
oth^auwin ^i^^^-Uy* there is another case where the nation in general 
which the ^ g^^^J of the Crimes of its members. That is, when, by 
nation is its manners, and by the maxims of its government, it accus- 
guilty of the toms and authorizes its citizens indiscriminately to plunder 
Se^SiMiifl. ^^^ maltreat foreigners, to make inroads into the neighbour- 
ing countries, &c. Thus, the nation of the Usbecks is guilty 
of all the robberies committed by the individuals of which it 
is composed. The princes whose subjects are robbed and 
massacred, and whose lands are infested by those robbers, may 
justly level their vengeance against the nation at large. (106) 
Nay, more ; all nations have a right to enter into a league 
against such a people, to repress them, and to treat them 
as the common enemies of the human race. The Christian 
nations would be no less justifiable in forming a confe- 
deracy against the states of Barbary, in order to destroy 
those haunts of pirates, with whom the love of plunder, or 
the fear of just punishment, is the only rule of peace and 
war. But these piratical adventurers are wise enough to re- 
spect those who are most able to chastise them ; and the na- 
tions that are able to keep the avenues of a rich branch of 
commerce open for themselves, are not sorry to see them shut 
against others. 



CHAP. VIL 

CHAP. VII. EFFECTS OF THE DOMAIN BETWEEN NATIONS. 

§ 79. Gene- ^B have explained, in Chap. XVIII. Book I., how a na- 
Se^mlia! *^^^ takes possessiou of a country, and at the same time gains 
possession of the domain and government therof. That coun- 
try, with every thing included in it, becomes the property of 
the nation in general. Let us now see what are the effects 
of this property, with respect to other nations. The full do- 
main is necessarily a peculiar and exclusive right ; for, if I 

* See PolybiuB, quoted by Barbey- (106) It was on this ground that &• 

rac, in hiB notes on Grotius, book iii. French nation so recently took po w w- 

chi^k xxiv. § vii. sion of Algiers^ — 0. 
248 



EFFECTS OF THE DOMAIN BETWEEN NATIONS. 164 

have a full right to dispose of a thing as I please, it thence ^^^ ^^' 
follows that others have no right to it at all, since, if they ^°^^' ^°' 
had any, I could not freely dispose of it. The priyate domain 
of the citizens may he limited and restrained in several ways 
by the laws of the state, and it always is so by the eminent 
domain of the sovereign ; but the general domain of the na- 
^on is full and absolute, since there exists no authority upon 
earth by which it can be limited : it therefore excludes all 
right on the part of foreigners. And, as the rights of a nation 
ought to be respected by all others (§ 64), none can form any [ 166 ] 
pretensions to the country which belongs to that nation, nor 
ought to dispose of it without her consent, any more than of 
the things contained in the country. 

The domain of the nation extends to every thing she pos- § 80. What 
Besses by a just title : it comprehends her ancient and original j* ^^"f!*' 
possessions, and all her acquisitions made by means which are the domSn 
just in themselves, or admitted as such among nations, — con- of a nation, 
cessions, purchases, conquests made in the regular war, &c. 
And by her possessions we ought not only to understand her 
territories, but all the rights she enjoys. 

Even the property of the individuals is, in the aggregate, § 81. The 
to be considered as the property of the nation, with respect property of 
to other states. It, in some sort, really belongs to her, from j^g^^JJJ^ 
the right she has over the property of her citizens, because perty of the 
it constitutes a part of the sum total of her riches, and aug- nation, with 
ments her power. She is interested in that property by her re«pect to 
obligation to protect all her members. In short, it cannot be ^^^^ ^" 
otherwise, since nations act and treat together as bodies in 
their quality of political societies, and are considered as so 
many moral persons. All those who form a society, a nation 
being considered by foreign nations as constituting only one 
whole, one single person, — all their wealth together can only 
be considered as the wealth of that same person. And this is 
BO true, that each political society may, if it pleases, establish 
within itself a community of goods, as Oampanella did in his 
republic of the sun. Others will not inquire what it does in 
this respect : its domestic regulations make no change in its 
rights with respect to foreigners nor in the manner in which 
they ought to consider the aggregate of its property, in what 
way soever it is possessed. 

By an immediate consequence of this principle, if one na- § 82. a oon- 
tion has a right to any part of the property of another, she ■^^"^^oe of 
has an indiscriminate right to the property of the citizens of ^ P™*°" 
the latter nation untU the debt be discharged. This maxim ^*' 
is of great use, as shall hereafter be shown. § g3. q^j^^ 

The general domain of the nation over the lands she inhabits nection of 

is naturally connected with the empire ; for, in establishing *h« domain 

herself in a vacant country, the nation certainly does not in- 2^*^® .^*" 

- -x • f /• X xi 1 tion witn 

.tend to possess it m subjection to any other power : and, can ^^ ^y^ 

we suppose an independent nation not vested with the absolute leignty. 



165 BFFEOTS OF THE DOMAIN BBTWEBN NATIONS. 

BOOK II. command in her domestic concerns ? Thus, we have already 
CHAP, vn. observed fBook I, § 205), that, in taking possession of a 
country, tne nation is presumed to take possession of its 
goYemment at the same time. We shall here proceed further, 
and show the natural connection of these two rights in an in- 
dependent nation. How could she govern herself at her own 
pleasure in the country she inhabits, if she cannot truly and 
absolutely dispose of it ? And how could she have the full 
and absolute domain of a place where she has not the command ? 
Another's sovereignty, and the rights it comprehends, must 
deprive her of the free disposal of that place. Add to thiB 
1^0 J the eminent domain which constitutes a part of the sovereignty 
(Book I, § 244), and you will the better perceive the intimate 
connection existing between the domain and the sovereignty 
of the nation. And, accordingly, what is called the high 
domain, which is nothing but the domain of the body of the 
nation, or of the sovereign who represents it, is everywhere 
considered as inseparable from the sovereignty. The UseftU 
domain, or the domain confined to the rights that may belong 
to an individual in the state, may be separated from the 
sovereignty: and nothing prevents the possibility of its be- 
longing to a nation in places that are not under her juris- 
diction. Thus, many sovereigns have fiefs, and other pos- 
sessions, in the territories of another prince : in these cases 
they possess them in the manner of private individuals. 
§ 84. Juris- The sovereignty united to the domain establishes the ju- 
diction. risdiction of the nation in her territories, or the country that 
belongs to her. It is her province, or that of her sovereign, 
to exercise justice in all the places under her jurisdiction, to 
take cognisance of the crimes committed, and the differences 
that arise in the country. 

Other nations ought to respect this right. And, as the 
administration of justice necessarily requires that every de- 
finitive sentence, regularly pronounced, be esteemed just, and 
executed as such, — when once a cause in which foreigners are 
interested has been decided in form, the sovereign of the de- 
fendants cannot hear their complaints. To undertake to ex- 
amine the justice of a definitive sentence is an attack on the 
jurisdiction of him who has passed it. The prince, therefore, 
ought not to interfere in the causes of his subjects in foreign 
countries, and grant them his protection, excepting in cases 
where justice is refused, or palpable and evident injustice 
done, or rules and forms openly violated, or, finally, an odious 
distinction made, to the prejudice of hia subjects, or of fo- 
reigners in general. The British court established this maxim, 
with great stren^h of evidence, on occasion of the Prussian 
vessels seized and declared lawful prizes during the last war.^ 

* See the report made to the King Murray. It is an excellent pieo9 00 
of Great Britain by Sir George Lee, the Uw of n^tiQIUi 
Dr. Paul, Sir Dudley Ryder, wd Mr. 
350 



JSVFBotB OF THB JDOMAIK BBTWE£N NATIONS. 



166 



What is here said has no relation to the merits of that par- book ii. 
ticular cause^ since they must depend on facts. chap, vn. 

In consequence of these rights of jurisdiction, the decisions § S5. Effects 
made hy the judge of the place within the extent of his power ^J^® ^V™" 
ought to be respected, and to take effect even in foreign coun- ^^^ "* 
tries. For instance, it belongs to the domestic judge to nomi- oountries. 
nate tutors and guardians for minors and idiots. The law of (107) 



(107) This principle appears to be now 
settled by the law and practice of na- 
tions; but, nevertheless, subject to cer- 
tain general wholesome rules, essential 
to be adhered to in order to prevent the 
effect of partial and unjust sentences 
and decisions. The respected decisions 
which have given rise to discussion, 
have principally been in foreign Courts 
of Admiralty, or Prize Courts ; and the 
law respecting them has been better 
settled by the decisions of Sir W. Scott 
and Sir J. Nichol, so universally re- 
spected, than at any other period of his- 
tory. By the long-established doctrine 
in England, and by the more recent 
general practice of European nations, 
a sentence of condemnation, pronounced 
in a court of competent jurisdiction, is 
essential, completely to transfer the 
legal interest in property captured as 
prize, (per Sir W. Scott, in The Flad 
Oyen, 1 Rob. Rep. 1 15). And, in order 
to constitute a legal prize-court to pro- 
nounce a binding sentence, by the law 
of nations, certain requisites are es- 
sentiaL The celebrated report drawn 
up by Lord Mansfield and signed by 
bun and other very eminent personages 
as their opinion, contains much of the 
law of nations upon the subject. (See 
Postle. Universal Diet, of Trade and 
Commerce, article SUesiOj 4th ed. ; and 
1 Col. Jurid. 133; and see Lindo v. 
Bodney, 2 Doug. 613, and Le Caux v. 
Eden^ id. 594.) One rule was there 
laid down, that the condemnation must 
have been pronounced by a court be- 
hnging to the belligerent country. (See 
id., and Havelock v. RockuHmd, Atche- 
Bon's Rep. 7 dD 8 ; 8 Term Rep. 288 ; 
1 CoL Jurid. 130.) Secondly, the court 
must have, at the time it pronounced 
sentence of condemnation, actually eat 
in the country to which it belonged, and 
not within the dominions of any foreign 
prince, whether neutral or an ally ; for, 
otherwise, a captor might have innu- 
merable seats of war, and elude the 
fair chance of recaption whilst the 
'Vessel or property was in progress 
towards a proper condemning port 



(Havelodc v. Rockwood, Atcheson's Rep. 
S SlA9; The Flad Oyen, 1 Rob. Rep. 
115, 8 Term Rep. 270, in notes.) 
Thirdly, the ship, or other property 
condemned as prize, must, at the time 
of condemnation, in general, be actually 
in the country where the sentence was 
pronounced^ — Per Sir W. Scott, in J%e 
Flad Oyen, 1 Rob. Rep. 115, where see 
some exceptions ; and see also Havelock 
V. Rochooody Atch. Rep. 49 ; {Jolly v. 
The Neptune, 2 Pet Adm. Dec 345; 
Findlay v. The WUliam, 1 Pet. Adm. 
Dec. 12.}. See other cases in 1 Har- 
rison's Index, pp. 687 to 689. 

By the marine law of England, as 
practised in the High Court of Admi- 
ralty, it was formerly held that there 
was no change of property in case of 
recaption, so as to bar the original 
owner in favour of a vendee or recaptor, 
until there had been a tentence of con- 
demnation (2 Burr. 696 ; Undo v. Rod- 
ney ^ another, 2 Douglas, 616 ; 1 Rob. 
Rep. 139) ; and now by statutes 13 Geo. 

2, c 4, s. 18, and 29 Geo. 2, c. 34, s. 
24, in case of recapture, the jue postli- 
minii is extended, and continues for 
ever, upon payment of certain salvage, 
which is regulated and fixed by 33 Geo. 

3, c. 66, s. 42. (See 2 Burr. 696, 
1209, dec.) And, when the private 
property of an allied sovereign is recap- 
tured fix>m the enemy, it is to be re- 
stored to him fi«e firom salvage, or even 
expense — (Alexander, 2 Dodson's Rep. 
37). With respect to the effect in 
England of foreign judgments, decrees, 
and sentences, the present general rule 
is, that, if they were decided in a fo- 
reigpi court, of competent jurisdiction, 
they shall be admitted as prima facU 
valid and binding on the parties in all 
other countries, but not conclusively to, 
(See the cases referred to in note (a) 
to NovelU V. Roes, 2 Bam. dc Adolph. 
765; and see Frankland v. M* Gutty, 
Knapp's Rep. 295; 1 Ves. 159; 
2 Strange, 733 ; 2 Bing. 380 ; 3 Bmg. 
353 ; 4 Bam. & Cres. 637 ; Tarleton v. 
Tarlelon, 4 Maule &, Sel. 20 ; Kennedy 
V. CauiUs, 2 Swanst. 325) ; {Calhoun 

251 



166 



EFFECTS OF THE DOMAIN BETWEEN NATIONS. 



BOOK n. 
OHAP. yii. 



nations, which has an eye to the common advantage ana ike 
good harmony of nations, requires, therefore, that such nomi- 
nation of a tutor or guardian be valid, and acknowledged in 
all countries where the pupil may have any concerns. Use 



y. Fitztimons^ 1 Bin. Rep. 293; Cat- 
breath V. Grary, 1 Wash. C. C. Rep. 
819.} And it was held, that a decree 
of die sale of a ship made in an Ame- 
rican court of competent jurisdiction, 
pending war with this countiy, was to 
be received in the Court of Admiralty 
in England as legally operative. (The 
Experimentij 2 Dods. Rep. 46, 47); 
{Thirty, &c v. BoyU, 9 Cranch, 191}. 
So, a marriagef established by the sen- 
tence of a foreign court having proper 
jurisdiction, has even been considered 
as conclusive by the law of nations 
(Roach V. Gavariy 1 Ves. sen. 169); 
{Story, Conf. Laws, p. 103, ed. 1834} ; 
and it was laid down by De Grey, C. J. 
that the judgment of a court of com- 
petent jurisdiction directly upon a point, 
is, as a plea, a bar, or, as evidence, con- 
clusioe, between the same parties upon 
the same matter directly in question 
in another court (See Duchett of King- 
stones case, 20 Howell's State Trials, 
538 ; and see Bui. N. Pri. 244 ; PhUlips 
V. Hunter, 2 Hen. Bla. 402, per Eyre, 
C. J. ; and see, as to that point, 1 Phil- 
lipps on Evid. part ii. c. 2 and 3, {vol. 
4, Am. ed. 1839, New York, pages 
856 to 915}; and Starkie on Evid. 
part ii. §§ 67, 68 ; Frankkmd Y,M'Gu8ty, 
I Knapp*s Rep. 274; Buchanan v. 
Itucker, 1 Campb. 63, 180, n., 9 East, 
192, S. C; Sadler v. Robins, id. 280, 
253 ; Cavan v. Stewart, 1 Stark. Rep. 
525 ; and see 1 Chitty's Com. L. 61 to 
65.) But such foreign decision is nd 
conclutwe like the judgment of a court 
of record in England ; and, therefore, 
if a man recover a judgment or sen- 
tence in France for money due to him, 
the debt must be considered here in 
England as only a simple contract debt, 
and the statute of limitations will run 
upon it (Dupleix v. De Roven, 2 Vem. 
540) : and the sentence of a court of 
summary jurisdiction in France can- 
not be pleaded to a bill in Chancery in 
England for the same matter (Gage v. 
Butkeley, 3 Atk. 215) ; and it should 
seem, that oven a recovery of a judg- 
ment upon a bond in a foreign country 
is no bar to an action here on the 
same bond. (Foster v. Vassall, 3 Atk. 
589, decided upon an Irish bond and 
judgment before the Union.) It is true 
252 



that there are cases which seem to 
decide that such foreign judgments ars 
conclusive. (See Newland v. Horseman, 

1 Vem. 21.) In a late case the Vice- 
Chancellor held that the grounds of a 
foreign judgment cannot be reviewed 
in the courts of this country, and that, 
therefore, a bill for a discovery and a 
commission to examine witnesses in 
Antigua, in aid of the parties' defence 
to an action brought on the judgment in 
this country, was demurrable. (Martin 
v. Nicholls, 3 Simon's Rep. 458, dted 
by Parke, J., in Bequest v. McCarthy, 

2 Bam. &l Adol. 954 ; see also Kennedy 
V. CassUis, 2 Swans. 326.) But that 
doctrine is not sustainable, and, there- 
fore, upon an appeal to the Privy 
Council from a decree of the court of 
justice at Demerara, such decree being 
for a sum of money alleged to be due 
on foreign judgments, was reversed, on 
the gpround that such court of justice 
had erroneously determined that those 
judgments were conclusive when they 
were only prima facie evidence of the 
debt, and it was competent to the ori^ 
ginal defendant to show that the judg- 
ment had been improperly obtained. 
(Frankland v. M*Gusly and Others, 
Knapp's Rep. 274.) If, therefore, a 
foreign judgment appear upon the face 
of it to have proceeded, either wholly 
in the defendant's absence, and with- 
out his having had any opportunity of 
knowing of the proceeding, and defend- 
ing it, and, therefore, manifestly against 
justice ; or if the decision has manifestly 
proceeded upon felse premises, or in- 
adequate reasons, or upon a mistake of 
local or foreign law, and which ought to 
have occasioned a different decision 
(Nooelh V. Ross, 2 Bam. <& Adol. 757) ; 
or, even if either of those objections be 
shown by extrinsic evidence (Frankland 
V. M*Gusty, Knapp's Rep. 274 to 310 ; 
semble, overruling the contrary decision 
in Martin v. Nicolls, 3 Simon's Rep. 
458, and 2 Swans. 326) ; then, it seems 
now to be clearly settled, at least in 
England, that the foreign decision will 
not be binding or valid — (id. ibid.) 
Thus, it was recently held, that, where 
the French courts had in dieir decrees, 
on the face of them, mistaken the law 
of England as to the effect of a cancel- 



SF9E0TS OF THE DOMAIN BETWEEN NATIONS. 



166 



was made of tUs maxim in the year 1672, eyen with respect book h 
to a sovereign. The abb^ D' Orleans, sovereign prince of chap, vii. 
Keufchatel, in Switzerland, being incapable of managing his [ 167 ] 
own affairs, the king of France appointed, as his guardian, 
his mother, the duchess-dowager of Longueville. The duch- 
ess of Nemours, sister to that prince, laid claim to the guar- 
dianship for the principality of Neufchatel : but the title of 
the duchess of Longueville was acknowledged by the three 
estates of the country. Her counsel rested her cause on the 



lation of the acceptance of a bill by miB- 
take, and had, on that ground, and con- 
tnuy to the English law, adjudged that 
the defendant^ as well as the plaintiff, 
was discharged from liability by such 
cuicellation, when, according to the 
English law, they remained liable, it 
was held, in the Court of King's Bench 
in England, that the defendant was 
still liable to be sued by the plaintiff for 
the debt in respect of which the bills 
were gfren, notwithstanding the de- 
cree. (NcwUi y. Rimti, 2 Bam. &, Adolp. 
767.) And, upon appeal to the Privy- 
Coundl, a decree of the court of jus- 
tice of Demerara, for a sum of money 
due upon three foreign judgments in 
8t Vincent's, was reversed, on the 
ground that those judgments had been 
improperly obtained. (Frankland y. 
M'Gusty, Knapp's Rep. 274.) So, if it 
appear on the face of the proceedings, 
or cikerwise, that the defendant in the 
foreign court was absent from the 
oountiy before the suit was oonunenced, 
the judgment against him may be 
deemed invalid. (^Buchanan v. Rucker, 
1 Campb. 63, 9 East Rep. 192 ; Cavan 
v. SUwart, 1 Stark. Rep. 525 ; Frank- 
hmd V. M^Gtuty, Knapjp's Rep. 304.) 
But, to render a foreign judgment void, 
on die ground that it is contrary to the 
law of the country where it was given, 
or to reason and justice, it must be 
shown clearly and unequivocally to be 
so. (SeequH v. McCarthy, 3 Bam. & 
Adolp. 951.) But, if the error do not 
appear upon the fooe of the proceeding 
•kd the party complaining of the judg- 
ment hiraadf was misled, and sub- 
mitted to the decision instead of pro- 
testing against it, he is too late to com- 
plain upon an appeal against it. (itfiio- 
aOuUry. MaadhaUr, 4 Wilson & Shaw, 
143y 147.) And where the law of a 
Britash colony required, that, on a suit 
inakitated against an absent party, the 
prooesB diould be served upon the 
King's Attomey-Qeneral in the colony, 
but it was not ezpressly provided that 



the Attorney-General should commu- 
nicate with the absent party; it was 
held, that such law was not so con- 
trary to national justice as to render 
void a judgment obtained against a 
party who had resided within the juruB- 
<fiction of the court at the time when 
the cause of action accraed, but had 
withdrawn himself before the proceed- 
ings were commenced. (JktvSu ; Dougltu 
V. Fwreit, 4 Bing. 6865 1 Moore & 
Pay. 663.) 80, homing, m Scotland 
(though the party was absent), was 
held legal, where the defendant had 
been domiciled in that country, and 
had left property there. (Douglat v. 
Forrest.) 

In England, the judgment of an 
English court of record, however in- 
ferior, is conclusive, until reversed by 
writ of error (1 Doug. 6), and even 
English judgments of inferior courts, 
not of record, are to some purposes 
condusive, unless it appear upon the 
face of the proceedings to have been un- 
fairly obtained (2 Burr. 1009 ; 2 Bing. 
216). But the judgment of an infe- 
rior court may be controverted, when 
it appears that the proceedings have 
been bad in law, as, where a summons 
and attachment, which ought to have 
been tuccetsive proceedings, in de&ult 
of appearance to the former, were is- 
sued against the defendant at the same 
time, and returnable at the same time, 
and to which the defendant never ap- 
peared (3 Bam. & Cres. 772 ; 6 Dowl. 
& Ryl. 719, 8. C.) ; and it seems that 
the judgment of an inferior court may 
be avoided, by proof that the cause of 
action did not arise within the jurisdic- 
tion of the court. ( Willes, 86 n. ; 2 Bing. 
213.) 

With respect to the proof of fonxgn^ 
judgments and decreet in England, it has 
been decided, that an exemplification 
of a sentence in Holland under &e 
common seal of the States, may be read 
in evidence in a suit in Chancery. 
Jbian. 9 Mod. 56. 



W 



S53 



167 



BFFEOTS OF THE DOMAIN BETWEEN NATIONS. 



BOOK II. 
OHAP. VII. 



Wills arid 
testaments. 



circumstance of her having been nominated ^ardian by the 
domestic judge.* This was a very wrong apphcation of a just 
principle : for, the prince's domestic residence could be no 
where but in his state : and it was only by the decree of tlie 
three estates, who alone had a right to choose a guardian for 
their sovereign, that the authority of the diichess of Longa^ 
ville became firm and lawful at Neufchatel. 
In the same manner the validity of a testamenty (108) as 



* Memorial in behalf of the duchess 
of Longueville, 1672. 

(108) See post Book 11. cfa. VIIL 
§ 103, p. 173, and § 111, p. 176. 

It is now settled in Great Britain 
that a will is to be construed, inter- 
preted, and given effect to, according to 
the law of the country tohere it tons 
made and where the testator had Ms domir 
die, and every court in every country 
is bound to construe it accordingly. 
(TroUer v. TroUer, 3 Wilson & Shaw, 
Rep. on Appeal Cases, 407, 414, — ^in 
House of Lords, appeal from Scotland.) 
And, therefore, where a native of Scot- 
land, domiciled in India, but who pos- 
sessed heritable bonds in Scotland, as 
well as personal property there, and, 
also, in bidia, having executed a vUl in 
India, ineffectual to convey Scotch heri- 
ta^ ; and a* question having arisen 
whether his heir-at-law (who claimed 
the heritable bonds as heir) was also 
entitled to a share of the movable pro- 
perty, as legatee under the will — it was 
held in the House of Lords, in Eng- 
land (affirming the judgment of the 
court below), that the construction of 
the will, as to whether it expressed an 
intention to pass the Scotch heritable 
bonds, and the legal consequences of 
that construction, must be determined by 
the law of the land where it was made; and 
where the testator had his domicile, namely 
India, that is, by the law of England; 
and this although the will was the sub- 
ject of judicial inquiry in the courts 
of Scotland ; for, these courts also are 
bound to decide according to the law 
of the place where the wiU was made* 
(Id. ibid. 414.) « A will must be inter- 
preted according to the law of the coun- 
try where it is made, and where the 
party making the will has his domicile. 
There are certain rules of construction 
adopted in the courts, and the expres- 
sions which are made use of in a will, 
and the language of a will, have fi^ 
quently reference to those rules of con- 
struction ; and it would be productive, 
therefore, of the most mischievous con- 
854 



sequences, and in many instances de- 
feat the intention of the testator, if 
those rules were to be altogether disre- 
garded, and the judges of a foreign 
court (which it may be considered, in 
relation to the will), without reference 
to that knowledge which it is desirable 
to obtain of the law of the country In 
which the will was made, were to in- 
terpret the will according to their own 
rules of construction. That would alao 
be productive of another inconvenience, 
namely, that the will might have a con- 
struction put upon it in the Englirii 
courts different from that which might 
be put upon it in the foreign oountiy. 
It appears to me, my Lords, that there 
is no solid ground for the objection; 
but that, where a will is executed in a 
foreign country by a person having his 
domicile in that country, with respect 
to that person's property, the will must 
be interpreted according to the law of 
the country where it is made ; it must, 
if it comes into question, in any pro- 
ceeding, have the same interpretation 
put upon it as would be put upon it in 
any tribunal of the country where it 
was made." — Per Lord Chancellor. 

But, where a will was made by a 
native of Scotland, domiciled m England^ 
and having personal property only there, 
and who went for a short time to Scot- 
land, and there executed his will in the 
Scotch form, and registered It therei, 
and afterwards died in England, it was 
held that such will must be construed 
according to the law of England, (jSt^ 
struther v. Chalmers, 8 Simons, 1). It 
should seem, therefore, that in some 
cases, as respects personalty, the domw 
die of the testator is to be regarded 
rather than the precise place of sigmng 
the will (id. ibicL, sed querd). 

A will made in Jamaica devising 
rente, issues, and profite of an estate 
there, passes slaves, mules, cattle, and 
machinery, (3 Simons, 398, Lushisgtom 
V. Sewdl, 1 Simons, 436, S. P.), though 
a devise of a form in England would 
not pass fanning utensils. (SHwart v. 



EFFECTS OF THE DOMAIN BETWEEN NATIONS. 167 

to its form, can only be decided by the domestic judge, whose book n. 
bentence delivered in form ought to be everywhere acknow- chap, vn. 
ledged. But, without affecting the validity of the testament 
itself, the bequests contained in it may be disputed before the 
judge of the place where the effects are situated, because those 
effects can only be disposed of conf9rmably to the laws of the 
country. Thus, the abb^ D'Orl^ans above mentioned having 
appointed the prince of Conti his universal legatee, — ^the 
three estates of Neufchatel, without waiting till the parlia- 
ment of Paris should pronounce their decision on the question 
of two contradictory wills made by the ahh6 D'Orl^ans, gave 
the investiture of the principality to the duchess of Nemours, 
— declaring that the sovereignty was unalienable. Besides, 
it might have been said on this occasion also, that the domestic 
residence of the prince could be nowhere but in the state. 

As every thing included in the country belongs to the § 86. Desert 
nation, — and, as none but the nation, or the person on whom ^f^^^'* 
she has devolved her right, is authorized to dispose of those pi^. 
things (§ 79), — if she has left uncultivated and desert places 
in the country, no person whatever has a right to take pos- 
session of them without her consent. Though she does not 
make actual use of them, those places still belong to her ; she 
has an interest in preserving them for future use, and is not 
accountable to any person for the maimer in which she makes 
use of her property. It is, however, necessary to recollect 
here what we have observed above (Book I. § 81). No nation 
can lawfully appropriate to herself a too disproportionate ex- 
tent of country, and reduce other nations to want subsistence, 
and a place of abode. A German chief, in the time of Nero, 
said to the Romans, ^'As heaven belongs to the gods, so the 
earth is given to the human race ; and desert countries are 
common to all,"* — giving those proud conquerors to under- 
stand that they had no right to reserve and appropriate to 
themselves a country which they left desert. The Romans [ 168 ] 
had laid waste a chain of country along the Rhine, to cover 
their provinces from the incursions of the barbarians. The 
German's remonstrance would have had a good foundation, 
had the Romans pretended to keep without reason a vast 
country which was of no use to them : but those lands which 
they would not suffer to be inhabited, serving as a rampart 
against foreign nations, were of considerable use to the empire. 

When there is not this singular circumstance, it is equally § 87. Duty 
agreeable to the dictates of humanity, and to the particular ^*^"^^ 

*, respect 

Maryat, 11 Ve8.657.) So, if a Datch- (Anon. 9 Mod. 66, and see Bowoman 
man be possessed of real estate in Hoi- ▼. Beeve, Pre. Ch. 677.) A will of 
land, and personal estate in England, property entirely abroad may be proved 
and devise his real estate to A., and there. (Jaunay v. Sealey, 1 Vem. 397.) 
his personal to B., the personal shall * Sicat ccelnm diis, ita terras generi 
be 6nt applied to pay debts in Hoi- mortaliura datas; qusque vacus, eas 
land, though real estate is liable there, publicas esse^-TxciT. 

255 



168 EFFECTS OF THE DOMAIN BSTWEBK NATIONS. 

BOOK n. advantage of the state, to give those desert tracts to foreign- 
CHAP. VII. ^j.g ^j^^ ^^^ willing to clear the land and to render it valuable. 
The beneficence of the state thus turns to her own advantage; 
she acquires new subjects, and augments her riches and power. 
This is the practice in America ; and, by this wise method, 
the English have carried their settlements in the new world 
to a degree of power which has considerably increased that 
of the nation. Thus, also, the king of Prussia endeavours to 
re-people his states laid waste by the calamities of former wars. 
i 88. Right The nation that possesses a country is at liberty to leave 
of po8se88- jj^ ^Yie primitive state of communion certain things that have 
that havrno ^^ 7®* ^^ owncr, Or to appropriate to herself the right of 
owner. possessing thosc things, as well as every other advantage 
which that country is capable of affording. And, as such a 
right is of use, it is, in case of doubt, presumed that the nation 
has reserved it to herself. It belongs to her, then, to the 
exclusion of foreigners, unless her laws expressly declare 
otherwise ; as those of the Romans, which left wild beasts, 
fish, &c., in the primitive state of communion. No foreigner, 
therefore, has a natural right to hunt or fidh in the terri- 
tories of a state, to appropriate to himself a treasure found 
there, &c. 
i 89. Rights There exists no reason why a nation, or a sovereign, if au- 
granted to thorized by the laws, may not grant various privileges in their 
another na- territories to another nation, or to foreigners in general, since 
every one may dispose of his own property as he thinks fit. 
.Thus, several sovereigns in the Indies have granted to the 
trading nations of Europe the privilege of having factories, 
ports, and even fortresses and garrisons in certain places 
within their dominions. We may in the same manner grant 
the right of fishing in a river, or on the coast, that of hunting 
in the forests, &c., and, when once these rights have been 
validly ceded, they constitute a part of the possessions of him 
who has acquired them, and ought to be respected in the same 
manner as his former possessions. 
i 90. It is Whoever agrees that robbery is a crime, and that we are 
brtfdri"" ^^* allowed to take forcible possession of our neighbour's 
a nation outP^^P^^J? ^^^ acknowledge, without any other proof, that no 
of a country nation has a right to expel another people from the country 
which it in- they inhabit, in order to settle in it herself. Notwithstanding 
habits, the extreme inequality of climates and soils, eveiy people 
ought to be contented with that which has fallen to their share. 
[ 169 ] Will the conductors of nations despise a rule that constitutes 
all their safety in civil society? Let this sacred rule be en-^ 
tirely forgotten, and the peasant will quit his thatched cottage 
to invade the palaces of the great, or the delightful possessions 
of the rich. The ancient Helvetians, discontented with their 
native soil, burned all their habitations, and commenced their 
march, in order to establish themselves, sword in hand, in the 
fertile plains of southern GcCul. But they received a terrible 

256 



BFFBOTS OF THE DOMAIN BSTWBBN NATIONS. 169 



lesson from a conqueror of superior abilities to themselves, book n. 
and who paid still less regard to the laws of justice, Caesar ^"^^' ^^ 
defeated them, and drove them back into their own country. 
Their posterity, however, more wise than they, confine their 
views to the preservation of the lands and the independence 
they have received from nature : they live contented, and the 
labour of free hands counterbalances the sterility of the soil. 

There are conquerors, who, aspiring after nothing more ; 91, oor to 
than the extension of the boundaries of their dominions, with- extend by 
out expelling the inhabitants from a country, content them- 7*^^®^® ?** 
selves with subduing them; — a violence less barbarous, but ^^^^^ ** 
not less unjust : while they spare the property of individuals, 
they seize all the rights of the nation, and of the sovereign. 

Since the least encroachment on the territory of another j 92. The 
is an act of injustice, — in order to avoid the commission of Hmita of 
any such act, and to prevent every subject of discord, every *e«Tito'"» 
occasion of quarrel, the limits of territories ought to be ^aarked ^^^^^^jj 
out with clearness and precision. If those who drew up the settled, 
treaty of Utrecht had bestowed on so important a subject all 
the attention it deserved, we should not see France and Eng- 
land in arms, in order to decide by a bloody war what are to 
be the boundaries of their possessions in America. But the 
makers of treaties often designedly leave in them some obscu- 
rity, some uncertainty, in order to reserve for their nation a 
pretext for a rupture : — an unworthy artifice in a transaction 
wherein good faith alone ought to preside ! We have also 
seen commissioners endeavouring to overreach or corrupt those * 
of a neighbouring state, in order to gain for their master an 
unjust acquisition of a few leagues of territory. How can 
princes or ministers stoop to dirty tricks that would dishonour 
a private man ? 

We should not only refrain from usurping the territory of j 93. VioU- 
others ; we should also respect, and abstain from every act tjo^ of t«f- 
contrary to the rights of the sovereign : for, a foreign nation "'^*7' 
can claim no right in it (§ 79). We cannot, then, without 
doing an injury to a state, enter its territories with force and 
arms in pursuit of a criminal, and take him from thence. 
This would at once be a violation of the safety of the state^ 
and a trespass on the rights of empire or supreme authority 
vested in the sovereign. This is what is called a violation 
of territory ; and among nations there is nothing more gene^ 
rally acknowledged as an injury that ought to be vigorously 
repelled by every state that would not suffer itself to be op- 
pressed. We shall make use of this principle in speaking of 
war, which gives occasion for many questions on the rights 
of territory. 

The sovereign may forbid the entrance of his territory 1 94. p^^, 

— • — hibition to 

(109) See farther as to the nibjeot A 84, 85; Marten's Law of Nations, onter the 
of this section, 1 Chit. Com. Law, 73 153. territory, 

33 w2 257 (1<W) 



170 BFFBCTS 07 THB DOMAIN BETWEEN NATIONS. 

BOOK II. either to foreigners in general or in particular cases, or in^ 
CHAP. VII. ^jertain persons or for certain particular purposes, according 
as he may think it advantageous to the state. There is nor 
thing in all this that does not flow from the rights of domain 
and sovereignty : every one is obliged to pay respect to the 
prohibition ; and whoever dares to violate it, incurs the penalty 
decreed to render it effectual. But the prohibition ought to be 
known, as well as the penalty annexed to disobedience : those 
who are ignorant of it, ought to be informed of it when they 
approach to enter the country. Formerly the Chinese, fear- 
ing lest the intercourse of strangers should corrupt the man- 
ners of the nation, and impair the maxims of a wise but sin* 
gular government, forbade all people entering the empire : a 
prohibition that was not at all inconsistent with justice, pro- 
vided they did not refuse human assistance to those whom 
tempest or necessity obliged to approach their frontiers. It 
was salutary to the nation, without violating the rights of any 
individual, or even the duties of humanity, which permits us. 
in case of competition, to prefer ourselves to others. 
^ 95. A If at the same time two or more nations discover and take 

country pos- posscssiou of an island or any other desert land without an 
"^^'^^^j^^na ^^^®^'' ^^^y ought to agree between themselves, and make an 
tfwwat^he oquitablc partition ; but, if they cannot agree, each will have 
K^ame time, the right of empire and the domain in the parts in which 

they first settled. 
$ 90. A An independent individual, whether he has been driv^i 

country pos- from his country, or has legally quitted it of his own accord, 
scesed by a j^^^j settle in a Country which he finds without an owner, and 
lon!^ ^^ there possess an independent domain. Whoever would after- 
wards make himself master of the entire country, could not 
do it with justice without respecting the rights and independ- 
ence of this person. But, if he himself finds a sufficient 
number of men who are willing to live under his laws, he may 
form a new state within the country he has discovered, and 
possess there both the domain and the empire. But, if this 
individual should arrogate to himself alone an exclusive right 
to a country, there to reign monarch without subjects, his 
vain pretensions would be justly held in contempt : — a rash 
and ridiculous possession can produce no real right. 

There are also other means by which a private pei*8on may 
found a new state. Thus, in the eleventh century, some 
Norman noblemen founded a new empire in Sicily, after hav- 
ing wrested that island by conquest from the common enemies 
of the Christian name. The custom of the nation permitted 
the citizens to quit their country in order to seek their for- 
tune elsewhere- 
If 97. inde- When several independent families are settled in a country, 
peDdant fa- they possess the free domain, but without sovereignty, since 
mmes in a ^jj^y ^q j^q^ f^j-^j ^k political socicty. Nobody can seize tht 
oountiy. empire of that country ; since this would be reducing thojjo 

258 



EFFECTS OP THE DOMAIN BETWEEN NATIONS. 170 

families to sabjection against their will ; and no man has a book n. 
right to command men who are born free, unless they volun- ^^^^' ^"' 
tarily submit to him. 

If those families have iSxed settlements, the place possessed 
by each is the peculiar property of that family : the rest of [ 171 ] 
the country of which they make no use, being left in the 
primitive state of communion, belongs to the first occupant. 
Whoever chooses to settle there, may lawfully take possession 
of it. 

Families wandering in a country, as the nations of shep- 
herds, and ranging through it as their wants require, possess 
it in common : it belongs to them to the exclusion of all other 
nations ; and we cannot, without injustice, deprive them of 
the tracts of country of which they make use. But, let us 
here recollect what we have said more than once (Book I. 
^ 81 and 209, Book II. § 69). The savages of North Ame- 
rica had no right to appropriate all that vast continent to 
themselves ; and since they were unable to inhabit the whole 
of those regions, other nations might, without injustice, set- 
tle in some parts of them, provided they left the natives a 
sufficiency of land. If the pastoral Arabs would carefully 
cultivate the soil, a less space might be sufficient for them. 
Nevertheless, no other nation has a right to narrow their 
boundaries, unless she be under an absolute want of land. 
For, in short, they possess their country ; they make use of 
it after their manner ; they reap from it an advantage suit- 
able to their manner of life, respecting which they have no 
laws to receive from any one. In a case of pressing neces- 
sity, I think people might, without injustice, settle in a part 
of that country, on teaching the Arabs the means of render- 
ing it, by the cultivation of the earth, sufficient for their own 
wants, and those of the new inhabitants. 

It may happen that a nation is contented with possessing ; 98. Poa- 
only certain places, or appropriating to itself certain rights, aesBion of 
in a country that has not an owner, without being solicitous ®®^**^ 
to take possession of the whole country. In this case, an-or^f'^^t^n 
other nation may take possession of what the first has neg- rights, in & 
lected ; but this cannot be done without allowing all the rights vacant 
acquired by the first to subsist in their full and absolute inde- <^^>^^- 
pendence. In such cases, it is proper that regulations should 
be made hj treaty ; and this precaution is seldom neglected 
among civilised nations. 

259 



ITl BULBS WITH BB8PB0T TO F0BBIGNBB8. 



BOOK IL 

CHAP. yni. 



CHAP. vni. 

BULES WITH BESPBCT TO FOBEIGNEBS. 

i 99. Oene- WE have already treated (Book I. § 213) of the inhabi- 
^^ *^*^ V^ tants, or persons who reside in a country where they are not 
the BtAto"*^* citizens. We shall here treat only of those foreigners who 
ought to ob- pass through or sojourn in a country, either on business, or 
horve to- merely as travellers. The relation that subsists between them 
wiirda fo- ^j^^ ^^^ socicty lu which they now live — the objects of their 
« eigne. d. joumcy, and of their temporary residence — ^the duties of hu- 
manity — the rights, the interest, and the safety of the state 
which harbours them — ^the rights of that to which they belong 
[ 172 ] — ^all these principles, combined and applied according to 
cases and circumstances, serve to determine the conduct that 
ought to be observed towards them, and to point out our right 
and our duty with respect to them. But the intention of this 
chapter is not so much to show what humanity and justice 
require towards foreigners, as to establish the rules of the law 
of nations on this sulgect — rules tending to secure the rights 
of all parties, and to prevent the repose of nations being dis- 
turbed by the quarrels of individuals. 
} 100. En- Since the lord of the territory may, whenever he thinks 
tering the proper, forbid its being entered (§ 94), he has, no doubt, a 
mlT^' power to annex what conditions he pleases to the permission 
^ ^ to enter. This, as we have already said, is a consequence 

of the right of domain. Can it be necessary to add, that the 
owner of the territory ought, in this instance, to respect the 
duties of humanity ? The case is the same with aU rights 
whatever : the proprietor may use them at his discretion ; and, 
in so doing, he does not injure any person ; but, if he would 
be free from guilt, and keep his conscience pure, he will never 
use them but in such manner as is most conformable to his 
duty. We speak here, in general, of the rights which belong 
to the lord of the country, reserving for the following chapter 
the examination of the cases in which he cannot refuse an 
entrance into his territory ; and we shall see, in Chap. X., how 
his duty towards all manxind obliges him, on other occasions, 
to allow a free passage through, and a residence in his state. 
If the sovereign annexes any particular condition to the 
permission to enter his territories, he ought to have measures 
taken to make foreigners acquainted wim it, when they pre- 
sent themselves on the frontier. 

There are states, such as China and Japan, into which all 
foreigners are forbid to penetrate without an express permis- 



(110) See more Mlj, GrotioB, book 2, chap. 2, p. 153 ; 1 Chit Com. L. 86, 87. 
260 



RULSS WITH RESPECT TO FOBSIGNERS. 172 

8ion ; bat, in Earope, the access is everywhere free to every book n. 
person who is not an enemy of the state, except, in some ^^^' ^"^' 
countries, to vagabonds and outcasts. 

But, even in those- countries which every foreigner may j loi. Fo- 
freely enter, the sovereign is supposed to allow him access reigners art 
only upon this tacit condition, that he be subject to the laws, ^^^^ ^ 
— I mean the general laws made to maintain good order, and ® *^*' 
which have no relation to the title of citizen or of subject of 
the state. The public safety, the rights of the nation and 
of the prince, necessarily require this condition; and the 
foreigner tacitly submits to it, as soon as he enters the coun- 
try, as he cannot presume that he has access upon any other 
footing. The sovereignty is the right to command in the 
whole country ; and the laws are not simply confined to regu- 
lating the conduct of the citizens towards each other, but also 
determine what is to be observed by all orders of people 
throughout the whole extent of the state. 

In virtue of this submission, foreigners who commit faults i 102. and 
are to be punished according to the laws of the country. The pani«*»abie 
object of punishment is to cause the laws to be respected, and ^i^^^^ *^ 
to maintain order and safety. r ^73 "| 

For the same reason, disputes that may arise between foreign- a 103. who 
ers, or between a foreigner and a citizen, are to be determined is the judge 
by the judge of the place, and according to the laws of the ®^ ^^'^^ <^'*" 
place. (Ill) And, as the dispute properly arises from the^^**^** 

(111) }In the courts of the United amity with another state, the eonrts of 
States alien friends are entitled to claim the latter ought not to give effect to 
the same protection of their rights as it In neither case ought the accidental 
eitizens. Taylor t. Carpenter, 3 Story's removal of either of the parties into a 
Bep. 458. } See atite, 166, in notes, as foreign country, or his prosecuting his 
to foreign judgmenta. The doctrine remedy there, alter the substance of the 
here advanced by Vattel (excepting as remedy ; and, however inconvenient 
Mjiards land) is contrary to the present and difiScult it may be to investigate 
French Code, and many other authors, and accurately ascertain the precise 
Upon principle, it should seem, that if state of foreign law, still, if courts will 
a contract or right be created in one entertain jurisdiction over sneh cases, 
eonntJ7, and be there by the Ux loci they ought to administer the law so as 
sobjected to certain qualifications, and to give effect to the transaction pre- 
dothed with certain privileges, it ought cisely the same as if it had been liti- 
to be enforced if at all as against aU gated in the country where created ; 
the original parties, precisely the same for, otherwise the original expectations, 
. in a foreign country as it would be in rights, and interests of the parties would 
that whore it was created ; and this, not be given effect to ; and it would be 
although it be a negotiable security, conceded that, more especially after a 
and the interest therein vested in a competent local court has already de- 
third person resident in a foreign oided upon the transaction {toUhout any 
oountry, because the latter ought^ apparent injuetice,) such decision ought 
when be takes it, to inquire into the to be conclusive in aU other courts and 
drcumstances and law which affected countries. 

it in the place where it was made. These principles are ftiUy acknow- 

Aiid d fortiori it should seem that if a lodged and given effect to in the pre- 

eontmct or transaction wore in viola- sent French Code and in their admi- 

tion of the state regulations of a foreign nistration of the law. (See Pardessn, 

nation where it was made, as in fraud Droit Commercial, voL 1, p. 455, 4 id. 

of its revenue, and such state is in 196, 205, 209 to 211, and 220 to <228, 

261 



173 



RULES WITH RESPECT TO FOREIGNERS. 



BOOK If. refusal of the defendant, who maintains that he is not bound 

CHAP. VIII. ^^ perform what is required of him, it follows, from the same 

principle, that every defendant ought to be prosecuted before 

his own judge, who alone has a right to condemn him, and 



tiUes, "De» ConJUude Legi$lati<mrelaH/ 
oil Commerce f* " 2>a V application de lot* 
ettrangeree relative* d la forme dee aetet /' 
"De V interpretation dee acteefaite enpayt 
eetranger§ ;" '*De V execution dee aetee 
faiuenpaytettrangert") Thus, in their 
coarts it has been considered, ibaty 
if a biU of ezchango be made in a fo- 
reign coantry, defective according to the 
French law, but valid according to the 
foreign law, it must nevertheless be 
given effect to in the French courts, 
even against a French endorser, "par ee 
que lee reglet tur la validiti intrineeque 
dee eonventione, eont deriviee du droit 
naturalf ct eont de touteelee legielatione /' 
and in the case of limitations, it is laid 
down that the law of prescriptions 
prevailing in the country where the 
contract was made, though different 
from that in France, must, in their 
courts, be given effect to. (4 Pardessus, 
223.) They admit the difficulty of as- 
certaining correctly tiio foreigp law, 
but consider that difficulty as not con- 
stituting any sufficient grounds for re- 
lieving (iieir courts from the necessity 
of giving full effect to the contract ac- 
eording to the law of the place where 
it was made. (4 Pardessus, 246.) When 
the foreign law differs from that where 
the suit is depending, undoubtedly the 
party relying on the foreign law must 
prove it {Broion v. Lacy, 1 Dowl. A 
RyL Ni. Pri. Cos. 41, n. (a). As to the 
evidence, see poet, note.) 

In Great Britain the same theory is 
professed, and prevails to a limited 
extent; but the courts have so nar- 
rowedly applied it, that, as regards the 
proeeee for the recovery of the claim, 
and the time when it must bo commenced, 
it is a doctrine rather in name than in 
practice, excepting in a few instances 
as regards foreign marriages, and a few 
other cases. Dalrymple v. Dalrymple, 
Hagg. Rep. 54; Laeon v. Higgine, 1 
DowL A Ryl. Ni. Pri. Rep. 88; Roach 
T. Garvan, 1 Yes. 159.) In theory it is 
laid down, that effect ought to be given 
to contracts, and especially to bills of 
exchange according to the law of the 
country where the contract was made, 
and in which it was to be performed, 
and not according to the law of the 
oountry into which either or all may re- 
262 



more ; for, what is not an obligation id 
one place cannot^ by the laws of another 
oountry, become such in another place. 
{The King of Spain v. Machado, 4 
Russ. Rep. 239 ; Burroioe v. Jemitto, 2 
Stra. 733; Sel. Gas. 144, S. C; Potter t. 
Broum, 5 East» 130 ; Chitty on Bills, 8Ui 
edit, 191.) 

And a foreign marriage, if eelebrated 
according to the lex loci, will be valid, 
though in a form quite different to that 
prescribed by English law. — Laeon t. 
Higgine, I DowL A RyL Ni. Pri. Caa. 
38; 3 Stark. Rep. 176; where see the 
mode of proving the foreign law. Am 
to which also see HiU v. Iieardo»f 
Jacob's Rep. 89, 90 ; and as to foreign 
marriagee, in general, see 1 Roper on 
Husband and Wife, 333; Lantaur v. 
TeeedalCf 8 Taunt 830 ; Smith v. Max- 
well, Ry. 4k Mood. Ni. Pri. Cas. 80 ; 
1 Carr. A Payne, 271, 8. C; and see 
Sutler T. Freeman, AmbL 303. And 
indeed, a marriage had in a foreign 
country will not be valid here unless it 
were so by the lex loci, {Butler v. Free- 
man, AmbL 303.) And, where the de- 
fendant gave the plaintiff, in a foreign 
country, where both were resident^ a 
bill of exchange drawn by the defend- 
ant upon a person in England, which 
bill was afterwards protested here for 
non-acceptance, and the defendant 
afterwards, while still abroad, beeame 
bankrupt there, and obtained a eertifi- 
cate of discharge by the law of that 
state, it was held that such certificate 
was a bar to an action here upon an 
implied assumpsit to pay the bill in 
consequence of such non-acceptance 
in England, because such implied con- 
tract must be considered as made 
abroad. {Potter v. Brown, 5 East, 124.) 
6o, in England, the rule is recognised, 
that the payment of a bill is to be made 
according to the law of the place where 
it was made payable, as best corres- 
ponding with the original intention of 
the parties. (Beawes, pL 251 ; Marius, 
102; Poth. pL 155; 5 Bam. A Ores. 
443; Chitty on Bills, 191.) So, the 
English oourts, in some cases, besides 
giving effect to the contract itself ac- 
cording to the foreign low, also give 
effect to such foreign law In somo col- 
lateral respects, acknowledging that 



RUIiBS WITH RESPECT TO FOREIGNERS* 



1T8 



compel him to the performance. The Swiss have wisely made 
this rule one of the articles of their alliance, in order to pre- 
vent the quarrels that might arise from abuses that were for- 
merly too frequent in relation to this subject. The defend- 



BOOK II. 
CHAP. VIII. 



othenrisd the greatest inJusUce might 
etwoe. Thu, in Fmnce, a protest for 
non-pajment is not to be made till the 
day after a bill falls dae, Trhereas in 
England it mast be made upon the 
very day; and it cannot be doubted 
that if the bill were payable in France 
the English courts mutt give effect to 
the French instead of the English law, 
(4 Pardessusy 227, semblo.) So, where 
a wife was entitled to a share under 
the statute of distribution, and was 
resident in Prussia, and by the laws of 
which one moiety of the effects of the 
husband must come to her on his death, 
the court of equity here did not, as 
usual, require him to make any settle- 
ment upon his wife. {Satoyer y, Skute, 
1 Anst. 63 ; and Campbell ▼. Frenehf 3 
Ves. 323.) 

But as before obseryed, the English 
courts will not, as respects the form 
of the rejn^dy, notice the foreign law ; 
and therefore a foreigner may in Eng- 
land be arretted for a debt, or in equity 
upon a writ of »e exeatf in respect of 
which he could not, according to the 
foreign law, where it was contracted, 
hare been imprisoned. {De la Vega 
T. rtaiiitrt, 1 Bam. A Adolph. 284; 10 
Bam. A Cress. 003 ; FUxck r. Holmy 

1 Jac. k Walk. 405.) So, though ao- 
cording to the law of Holland, persons 
joinUy concerned in trade could not sue 
AS partners, they might do so in Eng- 
land. {Sham r. Harvey, Mood. A M. 
226.) And, as regards the time for 
commencing suits on foreign contracts, 
the English courts, contrary to the 
practice in France, will only apply the 
EnglUh Statute of LimitattoMf and will 
not regard the foreign Ux loeL {The 
Hritiah Linen Company t. Drummond, 
10 Bam. k Cross. 903; 1 Bam. k 
Adolph. 285, 385; 1 Youngo k Jery. 
376; \Na9h r. Tupper, 1 Gaines's Rep. 
403; Deeouehe t. Savetier, 3 Johns. 
Gba. Bep. 190 ; LeRoy r. Growninthield, 

2 Mason's Rep. 151;} a/t(«r in France, 
4 Pardessujs, 223.) But it must be ob- 
ferred, that, in the ease of The Britieh 
Linen Company r. Dmmmond, (10 Bam. 
A Cress. 903), the much more distinct 
ftench law in 1 Pardessus, 455, 4 id. 
196, 209 to 211, 220 to 223, and 285, 
WW not eited, and that Lord Tenterden 



doubted whether the decision in I>el- 
voile V. The York BuUdinge Company 
was not the better law. 

Again, in the English courts there 
is a rule of narrow petty policy not to 
protect the revenue laws of a foreign 
state, even at amity with this country, 
but eren to encourage and give effect 
to the most dishonourable practices, 
however Injurious to such independent 
state; so that British subjects are al- 
lowed to carry on smuggling transac- 
tions adverse to the interests of a neigh- 
bouring country, provided they do not 
prejudice our own revenue. {Holman r. 
John§on, Cowp. ZiS)—per Lord Mans- 
field, " no cmtntry ever takea notice of the 
revenue lawe of another" (See all the 
cases collected and observed upon in 
Chitty on Bills, 8th edit 143, n. c.) 
And this to such a degree that a British 
subject has been allowed in the English 
courts to support an action against a 
purchaser of paper knowingly made 
by the plaintiff for the purpose of forg- 
ing assignilts upon the same, to be 
exported to France, in order to commit 
frauds there on other persons. {Smith 
V. ifarconnoyf 2 Peake's Rep. 81, ad- 
denda; and Strongitharm y. Lukyn, 
1 Esp. Rep. 389). Assuredly one state 
is bound to act towards another as 
neighbours should to each other; and 
should it be tolerated that the latter 
should encourage frauds of one upon 
the other? Express treaties sometimes 
expressly provide against the toleration 
of such practices. So, in some cases, 
the English courts will not only deny 
effect to a correct decision of a foreign 
court upon the lex loei applicable to the 
same transaction, but will actually ad- 
judicate to the contrary. Thus, in a 
late case it was held in chancery, that 
a distinct holder might recover in an 
English court on a bill drawn in France 
on a French stamp, although, in conse- 
quence of it not being in the form re- 
quired by the French Code, another 
holder had failed in an action which he 
brought upon it in a French court; 
and the vice-chancellor is reported to 
have b«en of opinion, " that the circum- 
stance of the bills being drawn and ac- 
cepted by the defendant in France, and 
of the i^aintiff having received the same 
263 



178 



BULES WITH RESPECT TO FOBEIGNEfiS. 



BOOK n. 
CBAP. viir. 



ant's judge is the judge of the place where that defendant haa 
his settled abode, or the judge of the place where the defend*' 
ant is, when any sudden difficulty arises, provided it does 
not relate to an estate in land, or to a right annexed to such 



from the French drawer, and of the bills 
having been drawn in such a form in 
France that the holder could not recoTcr 
on them in FrancCi waa no objection to 
hlB recoYering on them in an English 
court" {Wynne v. Jaekaon, 2 Russ. 
352 ; but see obsorrations in Wynne y. 
Cullender, 1 Russ. 293.) 

In cases where the foreign law and 
rule of construction would prevail, care 
must be observed to establish it, and 
have it stated on the record, for other- 
wise the contract will be construed the 
same as an English contract; and there- 
fore it was bold that an instrument exe- 
cuted by foreigners in a foreign country, 
as in Spain, must, on demurrer, be 
construed by the same grammatical 
rules as English contracts, and according 
to the obvious import of its terms, un- 
less there be an allegation in the bill in 
equity, setting it forth, and that» accord- 
ing to the law of the country in wbioh 
it was executed, the true construction 
of it is different ( The King of Spain 
and others v. Maehado and Others, 4 
Russ. 224.) 

Where an English commission pre- 
cedes a Scotch sequestration, all Scotch 
personal estate is liable to the commis- 
sion, and not to the sequestration. {Ex 
parte Cridland, 3 Ves. A B. 100 ; when 
otherwise. Ex parte Oeddee, 1 Glyn A 
J. 414.) 

Legacy in a foreign country, and 
coin, as sicca rupees, by a will in In- 
dia, if paid by remittance to this coun- 
try, the payment must be according to 
the current value of the rupee in India, 
without regard to the exchange or the 
expense of remiUance : so, as to other 
countries. ( CockereU v. Barber, 16 Yes. 
461.) 

With respect to the proof of foreign 
law, it must in general be established 
as a fact, and the court cannot take 
notice of the same Judicially. {Free* 
moult V. Dedire, 1 P. Wms. 431 j Ex 
parU Oridland, 3 Yes. A B. 09 ; ] Tal- 
bot V. Seeman, 1 Cranch, 1. } It is not 
absolutely necessary to prove it by the 
production of an examined copy; but 
a printed copy of the Cinq Codes of 
France, produced by the French vice- 
consul resident in London, purchased 
by him at a bookseller's shop at Paris, 
264 



was received as evidence of the law of 
France, upon which the Court in Eng- 
luid would act in deciding upon the 
validity of a marriage in France be- 
tween British subjects. {Lacon v. ffi^- 
gins, 1 Dowl. A RyL Ni. Pri. Rep. 38; 
3 Stark. 176, S. C.) And it has been 
supposed that the same point was de- 
cided in Sir Tliomae Picton'e case, where 
the question arose as to the right of in- 
flicting torture in the island of Trinidad* 
formerly u^der the dominion of Spain; 
and the attorney-general of the island 
was examined as a witness, and the 
court allowed him to refer to printed 
books purporting to contain the law of 
Spain; and Lord EUonborough, C. J., 
expressed no doubt that such books were 
receivable as evidence of the law of 
Spain and Trinidad. (30 Howell's State 
Trials. 514; but see 1 Dowl. A Ryl. NL 
Pri. Rep. 42, n. (a).) 

In equity, it has been held that the 
foreign law must be verified by the affi- 
davit of a professional person swearing 
positively, and not by the affidavit of 
another person not professionally ao- 
quainted with the law, and swearing 
only to information and belief. {Hill v. 
Beardon, Jacob, 89.) The best evidenee 
is an affidavit or evidence of the foreign 
consul, or a foreign advocate of experi- 
ence, stating verbatim the terms of the 
foreign law, when it was a written edict, 
or in the nature of our statute law. 
{Flack V. Holm, 1 Jac. A Walk. 418.) 

As respects the claims of a eocereign 
of a foreign independent etate upon a 
subject of Great Britain, it seems clear 
that ho stands in the same situation as 
a private subject of such foreign state. 
{Ghreig v. Somerville, 1 Russ. A M. 388, 
case of the emperor of Russia's claim.) 
Lord Hawkesbury said, that a foreign 
power might legally apply to the courts 
of judicature, and might obtain redress, 
as for defamation or calumny (6 Russ. 
Mod. Europe, 20, ante, 143), excepting 
that» in respect of his dignity, he, like 
our king, is not to recover costs {ante, 
164, HulUt V. King of Spain, 1 Dow. 
Rep. new ser. 177) ; and, if such sove- 
reign has never been in England, the 
statute of limitations constitutes no 
bar; and in equity at any distance of 
time, however remote, whilst there ia 



RULES WITH RESPECT TO FOREIGNERS. 178 



an estate. In this last case, as property of that kind is to book it. 
be held according to the laws of the country where it is situ- ^^^^' ^™' 
ated, and as the right of granting possession is vested in the 
rsler of the country, disputes relating to such property can 
only be decided in the state on which it depends. 

We have already shown (§ 84) how the jurisdiction of a 
nation ought to be respected by other sovereigns, and in what 
cases alone they may interfere in the causes of their subjects 
in foreign countries. 

The sovereign ought not to grant an entrance into his state i 104. Pro- 
for the purpose of drawing foreigners into a snare : as soon Action *«« 
as he admits them, he engages to protect them as his own ^"**^" 
subjects, and to afford them perfect security, as far as depends 
on him. Accordingly, we see that every sovereign who haa 
given an asylum to a foreigner, considers himself no less 
offended by an injury done to the latter, than he would be 
by an act of violence committed on his own subject. Hospi- 
tality was in great honour among the ancients, and even 
among barbarous nations, such as the Germans. Those 
savage nations who treated strangers ill, that Scythian tribe 
who sacrificed them to Diana,* were universally held in ab- 
horrence ; and Grotius justly saysf that their extreme ferocity 
excluded them from the great society of mankind. All other 
nations had a right to unite their forces in order to chastise 
them. 

From a sense of gratitude for the protection granted to J 105. Their 
him, and the other advantages he enjoys, the foreigner ought <*»ti«»- 
not to content himself with barely respecting the laws of the 



a fimd in courts it will be decreed that Columbian Chvemmeni v. Rothwihild, 1 
the foreign sovereign shaUbe at liberty, Simons, 94, id. 68.) And the sovereign 
by his ambassador, to go before the of a foreign state must either sue here 
master and prove such debt due from in his own name or by his ambassador; 
an Intestate's estate as he might be able, and his subjects, when privately inter- 
though not so as to prejudice any pre- ested, must sue individually in their 
▼ions distribution (id. ibid, cases first names, or in their defined political 
stated). character; and an ambassador cannot 

It baa been recently decided, that a sue in England as procurator general 

foreign sovereign has a right to sue in for all or any of the subjects of the 

the English courts in equity as well foreign sovereign. {Spanish Ambaua- 

as at law. {HuUeit and Others v. King dor v. Bingley, Hob. 113.) 

0/ Spain, 1 Dow. Rep. new ser. 169, By the maritime law materially 

and 2 Bligh, new ser. 31, in the House affecting the intercourse of nations with 

of Lords, on appeal from Court of each other, when damage has been 

Chancery.) {The Constitution of the occasioned to a ship by the equal fault 

United States gives jurisdiction to the of those managing one ship as the 

eoarts of the United States where other, as, by running foul of each other, 

foreign states are parties. The King the owner of the damaged vessel is to 

0/ Spain V. Oliver, 2 Wash. C. C. Rep. receive half the amount of the damage 

429. } sustained. {Hay y. Ze Neve, 2 Shaw's 

If a foreign state sue in chancery. Rep. 401 to 405.) 

the bill must properly describe the * The Taurians. See Grotius de 

plaintiff, so that he may, if thought Jure Belli et Paois, lib. iL cap. zx. { xl. 

fit^ be served upon a cross bill. {The n. 7. 

34 X 265 



178 BULBS WITH BB8PEGT TO FOREIGNBRS. 

BOOK n. country; he ought to assist it upon occasion, and contribute 
CHAP. Tin. |.Q j|.g defence, as far as is consistent with his duty as citizen 
of another state. We shall see elsewhere what he can and 
ought to do, when the country is engaged in a war. Bat 
there is nothing to hinder him from defending it against pi- 
rates or robbers, against the ravages of an inundation, or the 
[ 174 ] devastations of fire. Can he pretend to live under the pro- 
tection of a state, to participate in a variety of advantages 
that it affords, and yet make no exertion for its defence, bat 
remain an unconcerned spectator of the dangers to which the 
citizens are exposed ? 
^ 106. To He cannot, indeed, be subject to those burdens that have 
what bur- qqIj g, relation to the quality of citizens ; but he ought to 
a« BubjMt ^^^^ ^^^ share of all the others. Being exempted from serving 
in the militia, and from paying those taxes destined for the 
support of the rights of the nation, he will pay the duties im- 
posed upon provisions, merchandise, &c., and, in a word, 
every thing that has only a relation to his residence in the 
country, or to the affairs which brought him thither. 
§ 107. Fo- The citizen or the subject of a state who absents himself 
reignera fQj, a time without any intention to abandon the society of 
membera of ^^^^^ ^® ^ * member, docs not lose his privilege by his ab- 
their own seucc : ' he preserves his rights, and remains bound by the 
nation. same obligations. Being received in a foreign country, in 
virtue of the natural society, the' communication, and com- 
merce which nations are obliged to cultivate with each other 
(Prelim. §§ 11, 12; Book II. § 21), he ought to be considered 
there as a member of his own nation, and treated as such. 
^ IDS. The The state, which ought to respect the rights of other na- 
Btate has no tious, and in general those of all mankind, cannot arrogate 
Swporeon ^^ herself any power over the person of a foreigner, who, 
of a foreign- though he has entered her territory, has not become her sub- 
erj(ii2) ject. The foreigner cannot pretend to enjoy the liberty of 
living in the country without respecting the laws : if he vio- 
lates them, he is punishable as a disturber of the public 
peace, and guilty of a crime against the society in which he 
lives : but he is not obliged to submit, like the subjects, to all 
the commands of the sovereign : and, if such things are re- 



(112) But, in ancient Umes, the able claim, or eren a demand at law in 

Chancellor had jurisdiction, by writ of nature of an account, either upon a 

ne exeatf to restrain a foreigner or a contract or transaction entered into in 

British subject from going abroad and the foreign country, and although by 

communicating intelligence to an ene- the lex loei the foreigner could not bav6 

my, or otherwise injurious to this state, been arrested, (Flaek y. Holm, 1 Jac A 

And the Court of Chancery, from more W. 405.; but see De Carriere t. 0»- 

to more, have assurood and established lonne, 4, Ves. 577) ; and it is now set- 

a jurisdiction over foreigners in favour tied, that at law, a foreigner may be 

of a private subject; so that, if a fo- arrested in this country for a foreign 

reigner be here, and be about to depart^ debt, though he could not have been 

he may be restrained and compelled to imprisoned in his own country. {D^la 

give security for satisfying any oquit- Vega v. Vianncit 1 Bam. k Adolphl 284.) 
266 



RULES WITH RESPEOT TO FOREIGNERS. 174 

quired of him as he is unwilling to perform, he may quit the book ii. 
country. He is free at all times to leave it ; nor have we a .<^"^- ^'"- 
right to detain him, except for a time, and for very particu- 
lar reasons, as, for instance, an apprehension, in war time, 
lest such foreigner, acquainted with the state of the country * 
and of the fortified places, should communicate his know- 
ledge to the enemy. (113) From the voyages of the Dutch 
to tne East Indies, we learn that the kings of Corea forcibly 
detain foreigners who are shipwrecked on their coast ; and 
Bodinus assures us,* that a custom so contrary to the law of 
nations was practised in his time in Ethiopia, and even in 
Muscovy. This is at once a violation of the rights of indivi- 
duals, and of those of the state to which they belong. Things 
have been greatly changed in Russia ; a single reign — that 
of Peter the Great — ^has placed that vast empire in the rank 
of civilized nations. 

The property of an individual does not cease to belong to i 109. nop 
him on account of his being in a foreign country; it still con- ®^*'" ^" Pro- 
stitutes a part of the aggregate wealth of his nation (§ 81). ^®'*^* 
Any power, therefore, which the lord of the territory might [ 175 ] 
claim over the property of a foreigner would be equally de- 
rogatory to the rights of the. individual owner and to those 
of the nation of which he is a member. (114) 

Since the foreigner still continues to be a citizen of his 2 n^- Who 
own country, and a member of his own nation (§ 107), the "® ^^ ^®^" 
property he leaves at his death in a foreign country ought ^j. * ®"**"" 
naturally to devolve to those who are his heirs according to 
the laws of the state of which he is a member. But, not- 
withstanding this general rule, his immovable effects are to 
be disposed of according to the laws of the country where 
thev are situated. (See § 103.) 

As the right of making a will, or of disposing of his for-| m. wm 
tune in case of death, is a right resulting from property, it <>f » ^^wign- 
cannot, without injustice, be taken from a foreigner. The*'*^ 
foreigner, therefore, by natural right, has the liberty of mak- 
ing a will. But, it is asked, by what laws he is obliged to 
regulate himself, either in the form of his testament, or in 
the disposal of his property. 1. As to the form or solemni- 
ties appointed to settle the validity of a will, it appears that 
the testator ought to observe those that are established in the 
country where he makes it, unless it be otherwise ordained 
by the laws of the state of which he is a member ; in which 



(118) Bat see ante, 105, and note. (11&) -^h'^i 167, and note ; and see 

* In hie Republic, book i. chap. vi. Vattel cited, Anttruther y. Chalmer, 2 

(114) But specific perfonnance of an Sim. Rep. 4 ; but see Trotter v. Trotter, 

agreement rcUting to the boundaries 3 Wils. A Shaw, 407, 414, and aufe, 167, 

of two provinces in America, may be en- in notes,* and see Anon. 9 Mod. 66; 

forced by bill in chancery in England, JSowaman v. JReeve, Pre. Ch. 577, ante, 

if the parties be within the Jurisdiction. 173, note. 

(P9nn y. BaUimore, I Yes. sen. 444.) 

267 



175 BULBS WITH BESPBCT TO FOBEIGNEBS. 

BOOK n. case, he will be obliged to observe th& forms which they prer 
CHAP.. Yin. g^riV^A^ if he would validly dispose of the property he pos» 
sesses in his own country. I speak here of a will which is 
to be opened in the place where the person dies ; for, if a tra- 
' veller makes his will, and sends it home under seal, it is the 
same thing as if it had been written at home ; and, in this 
case, it is subject to the laws of his own country. 2. As to 
the bequests themselves, we have already observed that those 
which relate to immovables ought to be conformable to the 
laws of the country where those immovables are situated. 
The foreign testator cannot dispose of the goods, movable or im- 
movable, which he possesses in his own country, otherwise than 
in a manner conformable to the laws of that country. But, as 
to movable goods, specie, and other effects which he possesses 
elsewhere, which he has with him, or which follow his person, 
we ought to distinguish between the local laws, whose effect 
cannot extend beyond the territory, and those laws which 
peculiarly affect the character of citizen. The foreigner, re- 
maining a citizen of his own country, is still bound by those 
last-mentioned laws, wherever he happens to be, and is obliged 
to conform to them in the disposal of his personal property, 
and all his movables whatsoever. The laws of this kiud, 
made in the country where he resides at the time, but of 
which he is not a citizen, are not obligatory with respect to 
him. Thus, a man who makes his will, and dies in a foreign 
country, cannot deprive his widow of the part of his movable 
effects assigned to that widow by the laws of his own country. 
A Genevan, obliged by the law of Geneva to leave a dividend 
of his personal property to his brothers or his cousins, if they 
[ 176 ] be his next heirs, cannot deprive them of it by making his 
will in a foreign country, while he continues a citizen of Ge- 
neva ; but, a foreigner dying at Geneva is not obliged, in this 
respect, to conform to the laws of the republic. The case is 
quite otherwise with respect to local laws : they regulate what 
may be done in the territory, and do not extend beyond it. 
The testator is no longer subject to them when he is out of 
the territory ; and they do not affect that part of his property 
which is also out of it. The foreigner is obliged to observe 
those laws, in the country where he makes his will, with re- 
spect to the goods he possesses there. Thus, an inhabitant 
of Neufchatel, to whom entails are forbidden in his own coun- 
try with respect to the property he possesses there, freely 
makes an entail of the estate he possesses out of the juris- 
diction of the country, if he dies in a place where entails are 
allowed ; and, a foreigner making a will at Neufchatel, can- 
not make an entail of even the movable property he possesses 
there, — unless, indeed, we may suppose that his movable pro- 
perty is excepted by the spirit of the law. 
• 112. Ba- What we have established in the three preceding sections 
oheftiaice Is sufficient to show with how little justice the crown, ia some 

268 



RULES WITH RESPECT TO PORBIONERS. 176 

states, lays claim to the effects left there by a foreigner at book n. 
his death. This practice is founded on what is called escheat- ^"^^^ ^'°* 
age^ by which foreigners are excluded from all inheritances (or dootriao 
in the state, either of the property of a citizen or that of an ?f.^'*"^**^ 
alien, and, consequently, cannot be appointed heirs by will, ^ ^ 
nor receive any legacy. Grotius justly observes, that this 
law has descended to us from those ages when foreigners were 
almost considered as enemies.* Even after the Romans were 
become a very polite and learned people, they could not ac- 
custom themselves to consider foreigners as men entitled to 
any right in common with them. "Those nations," says 
Pomponius, the civilian, "with whom we have neither friend- 
ship, nor hospitality, nor alliance, are not, therefore, our ene- 
mies ; yet, if any thing belonging to us falls into their hands, 
it becomes their property ; our free citizens become slaves to 
them ; and they are on the same terms with respect to us."t 
We cannot suppose that so wise a people retained such inhu- 
man laws with any other view than that of a necessary reta- 
liation, as they could not otherwise obtain satisfaction from 
barbarous nations, with whom they had no connection or trea- 
ties existing. Bodinus shows,! that escheatage is derived from 
these worthy sources ! It has been successively mitigated, or 
even abolished, in most civilized states. The emperor Fre- 
deric II. first abolished it by an edict, which permitted all 
foreigners dying within the limits of the empire to dispose 
of their substance hy will^ or^ if they died intestate^ to nave 
their nearest relations for heirs-X But Bodinus complains 
that this edict is but ill executed. Why does there still re- [ 177 ] 
main any vestige of so barbarous a law in Europe, which is 
now so enlightened and so full of humanity ? The law of 
nature cannot suffer it to be put in practice except by way 
of retaliation. This is the use made of it by the king of Po- 
land in his hereditary states. Escheatage is established in 
Saxony ; but the sovereign is so just and equitable, that he 
enforces it only against those nations which subject the Saxons 
to a similar law. 

The right of traite foraine (called in Latin jus detraetu^)^iu. The 
is more conformable to justice and the mutual obligation or "k^* ^^ 
nations. We give this name to the right by virtue of which ^.|'*/^" 
the sovereign retains a moderate portion of the property 
either of citizens or aliens which is sent out of his territories 
to pass into the hands of foreigners. As the exportation of 



(110) Am to alienage in general, and the same, notwithBtancUng a subsequent 
^ jeakns provisions in England war — Siitton y. Sutton, 1 Ross. A Mjl. 



i foreigners, see 1 Chitty's Com- Rep. 663. 

Law, 108 to 169. See ezcep- * Bo Jure Belli et Paois, lib. iL oap. 

tions in treaty with America, and de- vi. J 14. 

eisions thereon with respect to Ame- f digest, lib. zlix. tit zr. De Cap- 

liraas who were seised of lands in tiris, ot PostUmin. 

<hMt Britain, being allowed to retain X His Republic, book L ehap. tL 

x2 269 



177 



BULE8 WITH KE8PECT TO F0BEI0NEB6. 



BOOK II. that property is a loss to the state, she may fairly receive an 
^5^^i^IEL equitable compensation for it. 

} 114. ixD- Every state has the liberty of granting or refusing to 
moTabie foreigners the power of possessing lands or other immovable 
p!«aeMed proporty within her territory. (117) If she grants them that 
by an alien, privilege, all such property possessed by aliens remains sub- 
ject to the jurisdiction and laws of the country, and to the 
same taxes as other property of the same kind. The author- 
ity of the sovereign extends over the whole territory ; and it 
would be absurd to except some parts of it, on account of 
their being possessed by foreigners. If the sovereign does 
not permit aliens to possess immovable property, nobody has 
a right to complain of such prohibition ; for, he may have 
very good reasons for acting in this manner: and, as foreigners 
cannot claim any right in his territories (§ 79), they ought 
not to take it amiss that he makes use of his power and of 
his rights in the manner which he thinks most for the advan- 
tage of the state. And, as the sovereign may refuse to 
foreigners the privilege of possessing immovable property, he 
is doubtless at liberty to forbear granting it except with cer- 
tain conditions annexed. 

There exists no natural impediment to prevent foreigners 
from contracting marriages in the state. But, if these mar- 



^ 115. Mar- 
riages of 
aliens. (118) 



(117) By the municipal law of Great 
Britain, no alien can inherit or hold 
real property. Thus, Doe v. Acklam, 
2 Bar. A Cx^aa. 799, establishes that 
a person bom in the United States, 
since 1783, when the two countries 
were separated, cannot inherit lands in 
England ,* and the same point was after- 
wards decided in Doe d, Auchmuiy v. 
Jfulcarter, 5 Bam. A Cres. 771. To 
this rule some exemptions have been oo- 
cQiiionally introduced by express treaty 
intended to be permanent, as regards 
such exception, and strengthened by 
statute; as under the treaty of 1794, 
between Great Britain and America, 
and the act 37 Geo. III. c. 97, under 
which American citizens who held lands 
in Great Britain, on 28 Oct 1796, and 
their heirs and assigns, are at aU timet 
to be considered, so far as regards thoee 
hmda, not as aliens, bat aa native tub- 
Jects of Great Britain, and this, not- 
withstanding a Bubiequent war and 
the adherence of the citisen to Ame- 
rica whilst at war with Great Britain, 
{Sution T. StMoH, 1 Russ. A M. 663), 
and the oonsequent confliction of duties 
as regards the American citisen seised 
of suoh estate. But, as alienage sub- 
jects no party to any indictment or pe- 
nalty, an alien must answer a bill of 
270 



discovery filed to ascertain whether 1m 
has purchased land. {DupUxeet ▼. At- 
torney-Oeneral, 1 Bro. P. C. 415 ; 2 Vcs. 
286.) 

(118) The validity of a marriage 
celebrated in a foreign country must 
be determined in an English court by 
the lex loei whore the marriage was 
solemnized; and, therefore, on a plea 
of coverture, where the parties, who 
were British subjects, were married in 
France, it was held, that, if the mar- 
riage would not be valid in that coun- 
try, according to the municipal law 
there, it would not be valid in this 
country. It was even f^irthor held 
that a printed copy of the " Cinq Codt^ 
of France, produced by the French 
vice-consul resident in London, pur- 
chased by him at a bookseller's shop 
in Paris, was properly received as evi- 
dence of the law of France upon whieh 
the court would act; and Abbott^ C it 
said: The general rule certainly i^ 
that the written law of a foreign coun- 
try must be proved by an examined 
oopy thereof before it ean be atlad 
upon in an English court; but, accord- 
ing to my recollection, printed books 
upon the subject of the law of Spain 
were referred to nod acted upon in 
ailment in AVr Thomae J*iHou'a cnKC". 



RIGHTS WHICH BELONG TO ALL NATIONS. 177 

riages are found prejudicial or dangerous to a nation, she has book n. 
;i right, and is even in duty bound to prohibit them, or to ^^^^' ^"' 
subject to certain conditions the permission to contract them : 
and, as it belongs to the nation or to her sovereign to deter- 
mine what appears most conducive to the welfare of the state, 
other nations ought to acquiesce in the regulations which any 
sovereign state has made on this head. Citizens are almost 
everywhere forbid to marry foreign wives of a different religion ; 
and in many parts of Switzerland a citizen cannot marry a 
foreign woman, unless he prove that she brings him in mar- 
riage a certain sum fixed by the law. 



CHAP. IX. [ 178 ] 

OP THE RIGHTS RETAINED BY ALL NATIONS AFTER THE chap, ix. 
INTRODUCTION OP DOMAIN AND PROPERTY. 

IF an obligation, as we have before observed, gives a right ? ii6. What 
to those things without which it cannot be fulfilled, every ab- «f« *^« 
solute, necessary, and indispensable obligation produces in"f?^®^ 

t • ' *\ \ 11 -LI. i«i^ wtucn men 

this manner rights equally absolute, necessary, and mdefea- cannot be 
sible. Nature imposes no obligations on men without giving deprived. 
them the means of fulfilling them. They have an absolute 
right to the necessary use of those means : nothing jcan deprive 
them of that right, as nothing can dispense with their fulfilling 
their natural obligations*. 

In the primitive state of communion, men had, without dis- ; ii7. Right 
tinction, a right to the use of every thing, as far as was ne- f^^ remain- 
cessary to the discharge of their natural obligations. And, ^^Jl^ve^* 
as nothing could deprive them of this right, the introduction Juteofcom. 
of domain and property could not take place without leaving mnnion. 
to every man the necessary use of things, — ^that is to say, 
the use absolutely required for the fulfilment of natural obli- 
gations. We cannot, then, suppose the introduction to have 
taken place without this tacit restriction, that every man 
should still preserve some right to the things subjected to pro- 
perty, in those cases where, without this right, he would re- 
main absolutely deprived of the necessary use of things of this 
nature. This right is a necessary remnant of the primitive 
state of communion. 

Notwithstanding the domain of nations, therefore, each 2 lis. Right 
nation still retains some right to what is possessed by others, "*^*^^^^ 
in those cases where she would find herself deprived of the ^^ j^e ^ 

as eridenee of the law of that conntry, of France. {Lacon v. HiggiM, I Dowl- 
and, therefore, I shall act npon that ing k Ryland, Ni. Pri. Cases, 38; 3 
aathori^, and receive the printed copy Stark. Rep. 176, B. C. ; BntUr v. Free- 
now pTOdaccd 08 evidence of the law man, Amhl. 303.) 

271 



178 RIGHTS WHICH BSLOKG TO ALL KATI0N3. 

BOOK II. necessary use of certain things if she were to be absolutely 
debarred from using them by the consideration of their be- 



property of i^g other people's property. We ought carefully to weigh 
oth9n, every circumstance in order to make a just application of 

this principle. 
^110. Right I say the same of the right of necessity. We thus call the 
of neccesUy. ^jghj; ^hich necessity alone gives to the performance of cer- 
tain actions that are otherwise unlawful, when, without these 
actions, it is impossible to fulfil an indispensable obligation. 
But it is carefully to be noted, that, in such a case, the obli- 
gation must really be an indispensable one, and the act in 
question the only means of fulfilling that obligation. If 
either of these conditions be wanting, the right of necessity 
does not exist on the occasion. We may see these subjects 
discussed in treatises on the law of nature, and particularly 
in that of Mr. Wolf. I confine myself here to a brief sum- 
mary of those principles whose aid is necessary to us in de- 
[ 179 ] veloping the rights of nations. 

i 120. Right The earth was designed to feed its inhabitants ; and he who 
of procuring jg Jq ^|^jjt of every thing is not obliged to starve because all 
brfoMo!" property is vested in others. When, therefore, a nation is 
(110) ' in absolute want of provisions, she may compel her neigh- 
bours who have more than they want for themselves to supply 
her with a share of them, at a fair price ; she may even take 
it by force, if they will not sell it. Extreme necessity re- 
vives -the primitive communion, the abolition of which ought 
to deprive, no person of the necessaries of life f§ 117). The 
same right belongs to individuals, when a foreign nation re- 
fuses them a just assistance. Captain Bontekoe, a Dutchman, 
having lost his vessel at sea, escaped in his boat, with a part 
of his crew, and landed on an Indian coast, where the bar- 
barous inhabitants refusing him provisions, the Dutch obtained 
them sword in hand.* 
; 121. Right In the same manner, if a nation has a pressing want of the 
of making gjupg^ wagous, horscs, or even the personal labour of foreign- 
thfngB that ®^^> ®^® ™*7 make use of them, either by free consent or by 
belong to force, provided that the proprietors be not under the same 
others. (119) ncccssity. But, as she has no more right to these things than 
necessity gives her, she ought to pay for the use she makes 
of them, if she has the means of paying. The practice of 
Europe is conformable to this maxim. In cases of necessity, 
a nation sometimes presses foreign vessels which happen to 
be in her ports ; but she pays a compensation for the services 
performed by them. 
2 122. Right Let us say a few words on a more singular case, since an- 
of carrying thors have treated of it— a case in which at present, people 

off women. 

(H9) See the doctrine of Preemption, • Bonketoe's Voyage, in the Voyigi* 
I ChiUjr'8 Com. Law, 103, 104, 105, 446, of the Dutch to the East Indicf^ 
447. 
2T2 



BIGHTS WHICH B^liONG TO ALL NATI0K8. 179 

are neyer reduced to employ force. A nation cannot preseire book n. 
and perpetuate itself, except by propagation. A nation of ^"^^' '^ 
men has, therefore, a right to procure women, who are abso- 
lutely necessary to its preservation ; and if its neighbours, who 
have a redundancy of females, refuse to give some of them in 
OArriage to those men, the latter may justly have recourse 
to force. We have a famous example of this in the rape of the 
Sabine women."*" But, though a nation is allowed to procure 
for itself, even by force of arms, the liberty of obtaining 
women in marriage, no woman in particular can be constrained 
in her choice, nor become, by right, the wife of a man who 
carries her off by force — ^a circumstance which has not been 
attended to by those who have decided, without restriction, 
that the Romans did not commit an act of injustice on that oc- 
ca8ion.t It is true that the Sabine women submitted to their 
fate with a good grace ; and, when their nation took up arms 
to avenge them, it sufficiently appeared, from the ardour with 
which those women rushed between the combatants, that they 
willingly acknowledged the Romans for their lawful husbands. 

We may further add, that, if the Romans, as many pretend, 
were originally only a band of robbers united under Romulus, 
they did not form a true nation, or a legitimate state ; the [ 180 ] 
neighbouring nations had a just right to refuse them women ; 
and the law of nature, which approves no civil society but 
such as is legitimate, did not require them to furnish that 
society of vagabonds and robbers with the means of perpetu- 
ating itself; much less did it authorize the latter to procure 
those means by force. In the same manner, no nation was 
obliged to furnish the Amazons with males. That nation of 
women, if it ever existed, put itself, by its own fault, out of a 
condition to support itself without foreign assistance. 

The right of passage is also a remnant of the primitive state § 123. Right 
of communion, in which the entire earth was common to all ©^ pawage^ 
mankind, and the passage was everywhere free to each indi- ^^^^^ 
vidual according to his necessities. Nobody can be entirely 
deprived of this right (§ 117) ; but the exercise of it is limited 
by the introduction of domain and property : since they have 
been introduced, we cannot exert that right without paying 
due regard to the private rights of others. The effect of pro- 
perty is, to give the proprietor's advantage a preference over 
that of all others. When, therefore, the owner of a territory 
thinks proper to refuse you admission into it, you must, in 
order to enter it in spite of him, have some reason more 



* LiTj, book L and states that the hiw of humanity 

t Wolfii Jos Gont J 341. does not seem to oblige us to grant pas- 

( 120 ) See fully 1 Chitty 's Com. L., 84 ; sage to any other goods except snch as are 

Orotinsy book ii. chap. ii. p. 153, states absolately necessary for the purpose of 

that A nation is bound to grant free jms- their life to whom they are thus oon- 

sage without rewjrvo or discretion. But veyed.— Puff, book vL ebi^). tii J 6, 

Poffendorf appears to agree with Yattcl, p. 29. 

35 278 



180 RIGHTS WHICH BELONG TO ALL NATIONS. 

BOOK IT. cogent than' all his reasons to the contrary. Such is the rigkt 
-.H£f?- ^^1^ of necessity : this authorizes an act on your part, which on 
other occasions would be unlawful, viz. an infringement of the 
right of domain. When a real necessity obliges you to ent^ 
into the territory of others, — ^for instance, if you cannot others 
wise escape from imminent danger, or if you have no oth^ 
passage for procuring the means of subsistence, or those of 
satisfying some other indispensable obligation, — ^you may 
force a passage when it is unjustly refused. But, if an equal 
necessity obliges the proprietor to refuse you entrance, he 
refuses it justly ; and his right is paramount to yours. Thus, 
a vessel driven by stress of weather has a right to enter, even 
by force, into a foreign port. But, if that vessel is affected 
with the plague, the owner of the port may fire upon it and 
beat it off, without any violation either of justice, or even of 
charity, which, in such a case, ought doubtless to begin at home. 
^ 124. and of The right of passage through a country woidd in most cases 
procuring be usclcss, without that of procuring necessaries at a fair 
necessaries. ^^-^^^ . ^^^ ^^ j^^^^ already shown (§ 120) that in case of ne- 
cessity it is lawful to take provisions even by force. 
^ 126. Right In speaking of exile and banishment, we have observed 
of dweiung (Book I. §§ 229—231) that every man has a right to dwell 
loun^^^ somewhere upon earth. What we have shown with respect 
to individuals mav be applied to whole nations. If a people 
are driven from the place of their abode, they have a right to 
seek a retreat : the nation to which they make application 
ought then to grant them a place of habitation, at least for a 
time, if she has not very important reasons for a refusal. 
But, if the country inhabited by this nation is scarcely suffi- 
cient for herself, she is under no obligation to allow a band 
of foreigners to settle in it for ever : she may even dismiss 
[ 181 ] them at once, if it be not convenient to her to grant them a 
permanent settlement. As they have the resource of seek- 
ing an establishment elsewhere, they cannot claim any autho- 
rity from the right of necessity, to stay in spite of the owners 
of the country. But it is necessary, in short, that these 
fugitives should find a retreat; and, if everybody rejects 
them, they will be justifiable in making a settlement in the 
first country where they find land enough for themselves, 
without depriving the inhabitants of what is sufficient for 
them. But, even in this case, their necessity gives them o&lv 
the right of habitation ; and they are bound to submit to all 
the conditions, not absolutely intolerable, which may be im- 
posed on them by the master of the country, — such as pay* 
inghim tribute, becoming his subjects, or at least living under 
his protection, and, in certain respects, depending on him. 
This right, as well as the two preceding, is a remnant of the 
primitive state of communion. 
; 126. We have been occasionally obliged to anticipate the subject 

^^^Wngi of ^f ^Q present chapter, in order to follow the order of the 

274 



SIGHTS WHICH BELONG TO ALL NATIONS. 181 

(Ufierent subjects that presented themselves. Thus, in speak- book n. 
ing of the open sea, we have remarked (Book I. § 281) that - ^^^^' '** 



diose things, the use of which is inexhaustible, cannot fall^^^®^.*^® 
ui)der the domain or property of any one; because, in ^^^^^haiwtibier 
free and independent state in which nature has produced 
them, they may be equally useful to all men. And, as to 
those things even which in other respects are subject to do- 
main, if their use is inexhaustible, they remain common with 
respect to that use. Thus a river may be subject both to do- 
main and empire ; but, in quality of running water, it remains 
common, — that is to say, the owner of the river cannot hin- 
der any one from drinking and drawing water out of it. 
Thus, the sea, even in those parts that are held in possession, 
being sufficient for the navigation of all mankind, he who has 
the domain cannot refuse a passage through it to any vessel 
from which he has nothing to fear. But it mav happen, by 
accident, that this inexhaustible use of the tning may be 
justly refused by the owner, when people cannot taie advan- 
tage of it without incommoding him or doing him a prejudice. 
For instance, if you cannot come to my river for water without 
passing over my land and damaging the crop it bears, I may for 
that reason debar you from the inexhaustible use of the running 
water : in which case, it is but through accident you are de- 
prived of it. This leads us to speak of another right which 
has a great connection with that just mentioned, and is even 
derived from it ; that is, the right of innocent use. 

We call innocent vse^ or innocent advantage^ that which ; 127. Ktght 
may be derived from a thing without causing either loss or of innocent 
inconvenience to the proprietor; and the right of innocent"^' 
use is the right we have to that advantage or use which may 
be made of uiings belonging to another, without causing him 
either loss or inconvenience. I have said that this right is 
derived from the right to things of which the use is inex- 
haustible. In fact, a thing that may be useful to any one [ 182 ] 
without loss or inconvenience to the owner, is, in this respect, 
inexhaustible in the use ; and that is the reason why the law 
of nature still allows all men a right to it notwithstanding 
the introduction of domain and property. Nature, who de- 
signs her gifts for the common advantage of mankind, does not 
allow us to prevent the application of those gifts to a useful 
purpose which they may be made to serve without any preju- 
dice to the proprietor, and without any diminution of the 
utility and advantages he is capable of deriving from his rights. 

Thw right of innocent use is not a perfect right, like that ? 128. Na- 
of necessity : for, it belongs to the owner to judge whether ^® ^f **^" 
the use we wish to make of a thing that belongs to him will "f^J^*" ^" 
not be attended with damage or inconvenience. If others 
should presume to decide on the occasion, and, in case of re- 
fusiJ, to compel the proprietor, he would be no longer master 
of his own property. It may frequently happen that the 

276 



182 BIGHTS WHICH BBLONG TO ALL NATIONS. 

BOOK n. person who wishes to derive advantage from a thing shall 
CHAP. IX. j^em t]i0 ^3^ q( it perfectly innocent, though it is not so in 
fact ; and if, in such case, he attempts to force the proprietor, 
he exposes himself to the risk of committing an act of injus- 
tice ; nay, he actually commits one, since he infringes the 
owner's right to judge of what is proper to be done on the 
occasion. In all cases, therefore, which admit of any doubt, 
we have only an imperfect right to the innocent use of things 
that belong to others. 
? i2t). ond But, when the innocence of the use is evident, and abso- 
ill c!!{*08 not lately indubitable, the refusal is an injury. For, in addition 
(Joubtfai. ^Q ^ manifest violation of the rights of the party by whom 
that innocent use is required, such refusal is moreover a tes- 
timony of an injurious disposition of hatred or contempt for 
him. To refuse a merchant-ship the liberty of passing through 
a strait, to fishermen that of drying their nets on the sea- 
shore, or of watering at a river, is an evident infringement 
of the right they have to the innocent use of things in those 
cases. But in every case, if we are not pressed by necessity, 
we may ask the owner his reasons for the refusal, and if he 
gives none, we may consider him as an unjust man ; or an 
enemy, with whom we are to act according to the rules of 
prudence. In general, we should regulate our sentiments and 
conduct towards him, according to the greater or lesser weight 
of the reasons on which he acts. 
i 130. Ex- All nations do therefore still retain a general right to the 
eroiwof thifliQaoeent use of things that are under the domain of any one 
tween na- ^^^^i^i^^^l nation. But, in the particular application of this 
tiona. right, it is the nation in whom the property is vested that is 

to determine whether the use which others wish to make of 
what belongs to her be really innocent: and, if she gives 
them a denial, she ought to allege her reasons ; as she must 
not deprive others of their right from mere caprice. All this 
is founded in justice : for, it must be remembered that the 
innocent use of things is not comprehended in the domain, or 
[ 183 ] the exclusive property. The domain gives only the right of 
judging, in particular cases, whether the use be really inno- 
cent. Now, he who judges ought to have his reasons ; and 
he should- mention them, if he would have us think that he 
forms any judment, and not that he acts from caprice or ill- 
nature. All this, I say, is founded in justice. In the next 
chapter, we shall see the line of conduct which a nation is, 
by her duty to other nations, bound to observe in die exer- 
cise of her rights. 



J7« 



HOW A KAXION IS TO USB HEB BiaHT OF JDOMAIK. 183 



BOOK II. 
CBAP. X. 



CHAP. X. 

HOW A NATION IS TO USB HER RIGHT OP DOMAIN, IN ORDER 
TO DISCHARGE HER DUTIES TOWARDS OTHER NATIONS, WITH 
RESPECT TO THE INNOCENT USE OP THINGS. 

SINCE the law of nations treats as well of the duties of i i3i. Go- 
states as of their rights, it is not sufficient that we have ex- ^^^ ^"^^ 
plained, on the subject of innocent use, what all nations have prfetor.^"* 
a right to require from the proprietor : we are now to con- 
sider what influence his duties to others ought to have on the 
proprietor's conduct. As it belongs to him to judge whether 
the use be really innocent, and not productive of any detri- 
ment or inconvenience to himself, he ought not to give a re- 
fusal unless it be grounded upon real and substantial reasons: 
this is a maxim of equity : he ought not even to stop at trifles, 
— a slight loss, or any little inconvenience : humanity forbids 
this ; and the mutual love which men owe to each other, re- 
quires greater sacrifices. It would certainly be too great a 
deviation from that universal benevolence which ought to unite 
the human race, to refuse a considerable advantage to an in- 
dividual, or to a whole nation, whenever the grant of it might 
happen to be productive of the most trifling loss or the slight- 
est inconvenience to ourselves. In this respect, therefore, a 
nation ought on all occasions to regulate her conduct by rea- 
sons proportioned to the advantages and necessities of others, 
and to reckon as nothing a small expense or a supportable 
inconvenience, when great good will thence result to another 
nation. But she is under no obligation to incur heavy ex- 
penses or embarrassments, for the sake of furnishing others 
with the use of any thing, when such use is neither necessary 
nor of any great utility to them. The sacrifice we here require 
is not contrary to the interests of the nation : — ^it is natural 
to think that the others will behave in the same manner in 
return ; and how great the advantages that will result to all 
states from such a line of conduct ! 

The introduction of property cannot be supposed to have ; 132. in- 
deprived nations of the general right of traversing the earth nocent pae- 
for the purposes of mutual intercourse, of carrying on com-"*^*^^^^) 
merce with each other, and for other just reasons. It is only 
on particular occasions, when the owner of a country thinks 
it would be prejudicial or dangerous to allow a passage through [ 184 ] 
it^ that he ought to refuse permission to pass. He is there- 
fore bound to grant a passage for lawful purposes, whenever 
he can do it without inconvenience to himself. And he can- 

(121) See, in general, 1 Chitty's Com. Law, 84, 88. 

y 277 



184 HOW A NATION IS TO UBB HER RIGHT OF DOMAIN. 

BOOK II. not lawfully annex burdensome conditions to a permission 
CHAP. X, ^jijgji hg jg obliged to grant, and which he cannot refuse if he 
wishes to discharge his duty, and not abuse his right of pro- 
perty. The count of Lupfen having improperly stopped 
some merchandise in Alsace, and complaints being made on 
the subject to the emperor Sigismund, who was then at the 
council of Constance, that prince assembled the electors, 
princes, and deputies of towns, to examine the aflfair. The 
opinion of the burgrave of Nuremberg deserves to be men- 
tioned : " God," said he, " has created heaven for himself 
and his saints, and has given the earth to mankind, intending 
it for the advantage of the poor as well as of the rich. The 
roads are for their use, and God has not subjected them to any 
taxes.'* He condemned the count of Lupfen to restore the 
merchandise, and to pay costs and damages, because he could 
not justify his seizure by any peculiar right. The emperor 
approved this opinion, and passed sentence accordingly.* 
J 133. Sare- But, if any apprehension of danger arise from the grant 
ties may bo ^f liberty to pass through a country, the state has a right to 
To^^iro . j-gquij-o sureties : the party who wishes to pass cannot refuse 
them, a passage being only so far due to him as it is attended 
with no inconvenience. 
^ 134. Pas- In like manner, a passage ought also to be granted for 
sage of mor- merchandise : and, as this is in general productive of no in- 
M^f ***" convenience, to refuse it without just reason is injuring a 
nation, and endeavouring to deprive her of the means of car- 
rying on a trade with other states. If this passage occasions 
any inconvenience, any expense for the preservation of canals 
and highways, we may exact a compensation for it by toll 
duties (Book I. § 103). 
2 135. Reel- In explaining the effects of domain we have said above 
oou^° **"•(§§ 64 and 100) that the owner of the territory may forbid 
country. ^j^^ entrance into it, or permit it on such conditions as he 
thinks proper. We were then treating of his external right, 
— that right which foreigners are bound to respect. But now 
that we are considering the matter in another view, and as it 
relates to his duties and to his internal right, we may venture 
to assert that he cannot, without particular and important 
reasons, refuse permission, either to pass through or reside 
in the country, to foreigners who desire it for lawful purposes. 
For, their passage or their residence being in this case an in- 
nocent advantage, the law of nature does not give him a' right 
to refuse it : and, though other nations and other men in ge- 
neral are obliged to submit to his judgment (§§ 128 and IBO), 
he does not the less offend against his duty, if he refuses 
without suflScient reason : he then acts without any true right ; 
he only abuses his external right. He cannot, therefore, 

• Stotder, Tol. i. p. 114. Tsohudi, (122) Pufibndorf, b. S, eh. 3, a. 6, 
vol. u. pp. 27, 28. p. 29. 

278 



HOW A NATION IS TO USB HER lUGHT OF DOMAIN. 185 

withont some particular and cogent reason, refuse the liberty book n. 
of residence to a foreigner who comes into the country with ^"^^' ^. 



the hope of recovering his health, or for the sake of acquir- 
ing instruction in the schools and academies. A difference 
in religion is not a sufficient reason to exclude him, provided he 
do not engage in controversial disputes with a view to dissemi- 
nate his tenets : for, that difference does not deprive him of 
the rights of humanity. 

We have seen(§ 125) how the right of necessity may ingisd. How 
certain cases authorize a people, who are driven from the^euo^ 
place of their residence, to settle in the territory of another J*** ?*^*'^ 
nation. Every state ought, doubtless, to grant to so tmf or- ^J^* d^g|jj^ 
tunate a people every aid and assistance which she can be- » perpeta«i 
stow without being wanting to herself: but to grant them an residenoe. 
establishment in the territories of the nation, is a very deli- 
cate step, the consequences of which should be maturely con- 
sidered by the conductor of the state. The emperors Probus 
and Valens experienced the evil effects of their conduct in 
having admitted into the territories of the empire numerous 
bands of Gepidse, Vandals, Goths, and other barbarians.* 
If the sovereign finds that such a step would be attended 
with too great an inconvenience or danger, he has a right to 
refuse an establishment to those fugitive people, or to adopt, 
on their admission, every precaution that prudence can dic- 
tate to him. , One of the safest will be, not to permit those 
foreigners to reside together in the same part of the country, 
there to keep up the form of a separate nation. Men who 
have not been able to defend their own country, cannot pre- 
tend to any right to establish themselves in the territory of 
another, in order to maintain themselves there as a nation in 
a body.f The sovereign who harbours them may therefore 
disperse them, and distribute them into the towns and pro- 
vinces that are in want of inhabitants. In this manner his 
charity will turn to his own advantage, to the increase of his 
power, and to the greater benefit of the state. What a dif- 
ference is observable in Brandenburg since the settlement of 
the French refugees ! The great elector, Frederic William, 
offered an asylum to those unfortunate people ; he provided 
for their expenses on the road, and with truly regal munifi- 
cence established them in his states ; by which conduct that 
beneficent and generous prince merited the title of a wise 
and able politician. 

When, by the laws or the custom of a state, certain actions i 137. Right 
are generally permitted to foreigners, as, for instance, tra- •ooming 

* Vopiscufl, Prob. c. xriii. — ^Ammian. seized, that it was not just for Uiem to 

Marcell. lib. xxxi. — Socrat Hist Ecoles. invade the territories of others, sinee 

lib. ir. c. 28. they had not been able to defend their 

f CiBsar replied to the Tenohthert own. — Neque verum erne, qui mot finet 

and Usipetcsi who wanted to retain tusri non potwrintf alienoa oecvpart. Be 

pofiseasion of the territories they had Bello Gallico, lib. i7. cap. vi. 

270 



185 HOW A NATION IS TO USB HBR RIGHT OF DOMAIN. 

BOOK n. veiling freely through the coTintry without any express per- 
<WAP. X. mission, marrying there, buying or selling merchandise, hunt- 



from a go- jng^ fishing, &c., we cannot exclude any one nation from the 
nenu p«r- |j^jj^g|. ^f ^]^q general permission, without doing her an in- 
mission. , _ -l"! x»l -11 <^1 A 

r Iftfi 1 J'^^y* unless there be some particular and lawful reason for 
*- -I refusing to that nation what is granted indiscriminately to 

others. The question here, it is to be observed, only relates 
to those actions which are productive of innocent advantage: 
and, as the nation allows them to foreigners without distinc- 
tion, she, by the very nature of that general permission, af- 
fords a sufficient proof that she deems them innocent with 
respect to herself; which amounts to a declaration that fo^ 
reigners have a right to them (§ 127): the innocence of such 
acts is manifested by the confession of the state; and the 
refusal of an advantage that is manifestly innocent, is an in- 
jury (§ 129). Besides, to attempt without any reason to lay 
one nation under a prohibition where an indiscriminate per- 
mission is enjoyed by all others, is an injurious distinction, 
since it can only proceed from hatred or contempt. If there 
be any particular and well-founded reason for the exception, 
the advantage resulting from the act in question can no longer 
be deemed an innocent one with respect to the excepted na- 
tion ; consequently no injury is done to them. The state 
may also, by way of punishment, except from the general 
permission a people who have given her just cause of com- 
plaint. 
; 138. A As to rights of this nature granted to one or more nations 
right grant- for particular reasons, they are conferred on them as favours, 
6d as a fa- gjther by treaty, or through gratitude for some particular ser- 
^^"' vice : those to whom the same rights are refused cannot con- 

sider themselves as offended. The nation does not esteem 
the advantage accruing from those acts to be an innocent one, 
since she does not indiscriminately allow them to all nations : 
and she may confer on whom she pleases any rights over her 
own property, without affording just grounds to anybody else, 
either for uttering a complaint, or forming pretensions to the 
same favour, 
{ 139. The Humanity is not confined to the bare grant of a permission 
nation ought to foreign nations to make an innocent use of what belongs 
tobe cour- ^o US : it moreover requires that we should even facilitate to 
them the means of deriving advantage from it, so far as we 
can do this without injury to ourselves. Thus, it becomes a 
well-regulated state to promote the general establishment of 
inns where travellers may procure lodging and food at a fair 
price, — to watch over their safety,— and to see that they be 
treated with equity and humanity. A polite nation should 
give the kindest reception to foreigners, receive them with 
politeness, and on every occasion show a disposition to oblige 
them. By these means every citizen, while he discharges his 
duty to mankind in general, will at the same time render 



teoQS. 



OF trSUOAPTION AND PRESCRIPTION AMONO NATIONS. 186 



CH4P. Z. 



essential services to his country. Glory is the certain reward book n. 
of virtue; and the good-will which is gained by an amia--""*" 
ble character^ is often productive of consequences highly im- 
portant to the state. No nation is entitled to greater praise 
in this respect than the French : foreigners nowhere meet a 
reception more agreeable, or better calculated to prevent their 
regretting the immense sums they annually spend at Paris. 



CHAP. XL [ 187 ] 

OF DSUCAPTION AND PRESCRIPTION AMONG NATIONS. (123) <^^^- "- 

LET US conclude what relates to domain and property with 
an examination of a celebrated question on which the learned 
are much divided. It is asked whether usucaption and pre- 
scription can take place between independent nations and 
states. 

Usucaption is the acquisition of domain founded on a long j 140. d^- 
possession, uninterrupted and undisputed — that is to say, finition of 
an acquisition solely proved by this possession. Wolf defines '"^^p*'®'* 
it, an acquisition of domain founded on a presumed desertion, ^rfp^n. 
His definition explains the manner in which a long and peace- 
able possession may serve to establish the acquisition of do- 
main. Modestinus, Digest^ lib. 3, de Usurp, et Uaucap,^ says, 
in conformity to the principles of the Roman law, that tcsu- 
caption is the acquisition of domain by possession continued 
during a certain period prescribed by law. These three defi- 
nitions are by no means incompatible with each other ; and 
it is easy to reconcile them by setting aside what relates to 
the civil law in the last of the three. In the first of them, 
we have endeavoured clearly to express the idea commonly 
afiixed to the term udiicaption. 

Prescription is the exclusion of all pretensions to a right — 
an exclusion founded on the length of time during which that 
right has been neglected : or, according to Wolf's definition, 
it is the loss of an inherent right by virtue of a presumed 
consent. This definition, too, is just; that is, it explains 
how a right may be forfeited by long neglect ; and it agrees 
with the nominal definition we give of the term, prescription^ 
in which we confine ourselves to the meaning usually annexed 
to the word. As to the rest, the term usucaption is but lit- 
tle used in French ; and the word prescription implies, in that 

(123) We have seen that twenty years' creates a right See antef 125 to 127 ; 
nndistorbed possession or enjoyment of and see Henest ▼. Pipon, Koapp's Rep. 
■a easement or profit amongst nations, 60 to 73; where see the law of nations 
9M wdl MB amongst private individuals, faUy examined. — C. 

36 y2 231 



187 OP USUCAPTION AND PRESCRIPTION AMONG NATIONS. 



sooK II. language, every thing expressed by the Latin terms utueapio 
^''^''' ^^' and proescriptio : wherefore we shall make use of the word 
prescription wherever we have not particular reasons for em- 
ploying the other. 
I HI. Usu- Now, to decide the question we have proposed, we must 
caption and first gee whether usucaption and prescription are derived from 
prescription ^j^g j^^^ ^f nature. Many illustrious authors have asserted 
thriaw o7"" *^^ proved them to be so.* Though in this treatise we fre- 
nature. quently suppose the reader acquainted with the law of nature, 
it is proper in tliis place to establish the decision, since the 
affair is disputed. 

Nature has not herself established a private property over 
any of her gifts, and particularly over land; she only ap- 
proves its establishment, for the advantage of the human 
[ 188 ] race. On this ground, then, it would be absurd to suppose, 
that, after the introduction of domain and property, the law 
of nature can secure to a proprietor any right capable of in- 
troducing disorder into human society. Such would be the 
right of entirely neglecting a thing that belongs to him, — of 
leaving it during a long space of time under all the appear- 
ances of a thing utterly abandoned or not belonging to him, — 
and of coming at length to wrest it from a bona fide possessor, 
who has perhaps dearly purchased his title to it, — ^who has 
received it as an inheritance from his progenitors, or as a por- 
tion with his wife, — and who might have made other acquisi- 
tions, had he been able to discover that the one in question 
was neither solid nor lawful. Far from giving such a right, 
the law of nature lays an injunction on the proprietor to take 
care of his property, and imposes on him an obligation to 
make known his rights, that others may not be led into error: 
it is on these conditions alone that she approves of the pro- 
perty vested in him, and secures him in the possession. K 
he has neglected it for such a length of time that he cannot 
now be admitted to reclaim it without endangering the rights 
of others, the law of nature will no longer allow him to re- 
vive and assert his claims. We must not therefore conceive 
the right of private property to be a right of so extensive 
and imprescriptible a nature, that the proprietor may, at the 
risk of every inconvenience thence resulting to human society, 
absolutely neglect it for a length of time, and afterwards re- 
claim it, according to his caprice. With what other view than 
that of the peace, the safety, and the advantage of human 
society, does the law of nature ordain that all men should 
respect the right of private property in him who makes use 
of it ? For the same reason, therefore, the same law requires 
that every proprietor who for a long time and without any 
just reason neglects his right, should be presumed to have 

* Seo Qrotius de Juro Belli et Pacis, Gent lib. iy. cap. xii. — ^and espeoiallj 
lib. ii. cap. ir. — PofTendorf, Jas Nat et Wolfius, Jus Nat part iii. cap. vii. 
282 



OF USUCAPTION AND PRESCRIPTION AMONG NATIONS. 188 

entirely renounced and abandoned it. This is what forms the ^^^ "• 

absolute presumption {juris et de Jure) of its abandonment, 25^Ii-^ 

a presumption, upon which another person is legally entitled 
to appropriate to himself the thing so abandoned. The ab- 
solute presumption does not here signify a conjecture of the 
secret intentions of the proprietor, but a maxim which the 
law of nature ordains should be considered as true and inva- 
riable, — and this with a view of maintaining peace and order 
among men. Such presumption therefore confirms a title as 
firm and just as that of property itself, and established and 
supported by the same reasons. The bona fide possessor, 
resting his title on a presumption of this kind, has, then, a 
right which is approved by the law of nature ; and that law, 
which requires that the rights of each individual should be 
stable and certain, does not allow any man to disturb him in 
his possession. 

The right of usucaption properly signifies that the bona 
fide possessor is tfot obliged to suffer his right of property to 
be disputed after a long-continued and peaceable possession 
on tis part : he proves that right bv the very circumstance 
of possession, and sets up the plea of prescription in bar to [ 189 ] 
the claims of the pretended proprietor. Nothing can be more 
equitable than this rule. If the claimant were permitted 
to prove his property, he might happen to bring proofs 
very convincing indeed in appearance, but, in fact, deriving 
all their force only from the loss or destruction of some docu- 
ment or deed which would have proved how he had either 
lost or transferred his right. Would it be reasonable that he 
should be allowed to call in question the rights of the pos* 
sessor, when by his own fault he has suffered matters to pro- 
ceed to such a state that there would be danger of mistaking 
the truth ? If it be necessary that one of the two should be 
exposed to lose his property, it is just it should be the party 
who is in fault. 

It is true, that, if the bona fide possessor should discover, 
with perfect certainty, that the claimant is the real proprie- 
tor, and has never abandoned his right, he is bound in con- 
science, and by the internal principles of justice, to make 
restitution of whatever accession of wealth he has derived 
from the property of the claimant. But this estimation is 
not easily made ; and it depends on circumstances. 

As prescription cannot be grounded on any but an abso- ? 142. What 
lute or lawful presumption, it has no foundation, if the pro- foundation 
prietor has not really neglected his right. This condition fo/orfinarr 
implies three particulars : 1, that the proprietor cannot allege preacnption. 
an invincible ignorance, either on his own part, or on that of 
the persons from whom he derives his right ; — 2, that he can- 
not justify his silence by lawful and substantial reasons ; — 3, 
that he has neglected his right, or kept silence during a con- 
siderable number of years : for, the negligence of a few years, 

283 



189 OF USUOAPTION AND PRBSCRIPTION AMONG NATIONS. 

BOOK n. being incapable of producing confusion and rendering doubt- 
^^^' ^': ful the respective rights of the parties, is not sufficient to 
found or authorize a presumption of relinquishment. It is 
impossible to determine by the law of nature the number of 
years required to found a prescription : this depends on the 
nature of the property disputed, and the circumstances of 
the case. 
; 143. im- What we have remarked in the preceding section, relates 
"wflorr tion ^ ordinary prescription. There is another called immemo- 
' naJ, because it is founded on immemorial possession, — that 
is, on a possession, the origin of which is unknown, or so 
deeply involved in obscurity, as to allow no possibility of prov- 
ing whether the possessor has really derived his right from 
the original proprietor, or received the possession from another. 
This immemorial prescription secures the possessor's right, 
beyond the power of recovery : for, it affords a legal pre- 
sumption that he is the proprietor, as long as the adverse party 
fails to adduce substantial reasons in support of his claim : 
and, indeed, whence could these reasons be derived, since the 
origin of the possession is lost in the obscurity of time ? * It 
ought even to secure the possessor against every pretension 
contrary to his right. What would be the case were it per- 
mitted to call in question a right acknowledged time immemo- 
rial, when the means of proving it were destroyed by time ? 
Immemorial possession, therefore, is an irrefragable title, and 
[ 190 ] immemorial prescription admits of no exception: both arc 
founded on a presumption which the law of nature directs ua 
to receive as an incontestable truth. 
; 144. Iii cases of ordinary prescription, the same argument can- 

ciumant ai- not be uscd against a claimant who alleges just reasons for 
leging reit- hjg gjlence, as, the impossibility of speaking, or a well-iounded 
sons or ib ^^^^^ ^^^ because there is then no longer any room for a pre- 
sumption that he has abandoned his right. It is not his fault 
if people have thought themselves authorized to form such a 
presumption ; nor ought he to suffer in consequence : he can- 
not therefore be debarved the liberty of clearly proving his 
property. This method of defence in bar of prescription has 
been often employed against princes whose formidable power 
had long silenced the feeble victims of their usurpations. 
; 145. Pro- It is also very evident that we cannot plead prescription 
prictor suf- jjj opposition to a proprietor who, being for the present un- 
■bowinff ^^^^ ^^ prosecute his right, confines himself to a notification, 
that he does by any token whatever, sufficient to show that it is not his 
not mean to intention to abandon it. Protests answer this purpose. With 
abaodon his sovereigns it is usual to retain the title and arms of a sove- 
"*^ ^ reignty or a province, as an evidence that they do not relin- 

quish their claims to it. 
f 14«. Pre- Every proprietor who expressly commits, or omits, certain 
Mription acts, which he cannot commit or omit without renouncing his 
foQsded on right, sufficiently indicates by such commission or omission 

284 



OF USUCAPTION AND PRESCRIPTION AMONG NATIONS. 190 

that it is not his intention to preserve it, unless, by an express book n. 
reservation, he declare the contrary. We are undoubtedly ^^^^' ^^' 



authorized to consider as true what he suflSciently manifests *^® ao^ons 
on occasions where he ought to declare the truth : conse- prieJ,^"* 
quently, we may lawfully presume that he abandons his right; 
and, if he would afterwards resume it, we can plead prescrip- 
tion in bar to his claim. 

After having shown that usucaption and prescription are j 147. Usu. 
founded in the law of nature, it is easy to prove that they caption and 
are equally a part of the law of nations, and ought to take P^scription 
place between different states. For, the law of nations is but ^etw^nna- 
the law of nature applied to nations in a manner suitable to tions. 
the parties concerned (Prelim. § 6). And so far is the nature 
of the parties from affording them an exemption in the case, 
that usucaption and prescription are much more necessary 
between sovereign states than between individuals. Their 
quarrels are of much greater consequence ; their disputes are 
usually terminated only by bloody wars ; and consequently 
the peace and happiness of mankind much more powerfully 
require that possession on the part of sovereigns should not 
be easily disturbed, — and that, if it has for a considerable 
length of time continued uncontested, it should be deemed 
just and indisputable. Were we allowed to recur to antiquity 
on every occasion, there are few sovereigns who could enjoy 
their rights in security, and there would be no peace to be 
hoped for on earth. 

It must however be confessed, that, between nations, the i us, Moro 
rights ^ usucaption and prescription are often more difficult ^^i^cuit bo- 
in their application, so far as they are founded on aprosump-^jl^^^'^j""" 
tion drawn from lon^ silence. Nobody is ignorant how dan- found thom 
gerous it commonly is for a weak state even to hint a claim on a pre- 
to the possessions of a powerful monarch. In such a case, ^nmptive 
therefore, it is not easy to deduce from long silence a legal ^^^^ *^"" 
presumption of abandonment. To this we may add, that, as [ 191 ] 
the ruler of the society has usually no power to alienate 
what belongs to the state, his silence, even though sufficient to 
afford a presumption of abandonment on his own part, can- 
not impair the national right or that of his successors. The 
question then will be, whether the nation has neglected to 
supply the omission caused by the silence of her ruler, or has 
participated in it by a tacit approbation. 

But there are other principles that establish the use and g 149. oiher 
force of prescription between nations. The tranquillity of principle* 
the people, the safety of states, the happiness of the human *^*^p^"® 
race, do not allow that the possessions, empire, and other ^^n. 
rights of nations should remain uncertain, subject to dispute, 
and ever ready to occasion bloody wars. Between nations, 
therefore, it becomes necessary to admit prescription founded 
on length of time as a valid and incontestable title. If any 
nation has kept silence through fear, and as it were through 

385 



191 OF U6UCAPTI0N AND PEBSCRIPTION AMONG NATIONS. 



BOOK II. necessity, the loss of her right is a misfortune which she ought 
CHAP. XT. patiently to bear, since she could not avoid it: and why should 
she not submit to this as well as to have her towns and pro- 
vinces taken from her by an unjust conqueror, and to be 
forced to cede them to him by treaty ? It is, however, only 
in cases of long-continued, undisputed, and uninterrupted 
possession, that prescription is established on these grounds, 
because it is necessary that affairs should some time or other 
be brought to a conclusion, and settled on a firm and solid 
foundation. But the case is different with a possession of 
only a few years' continuance, during which the party whose 
rights are invaded may from prudential reasons find it expe- 
dient to keep silence, without at the same time affording 
room to accuse him of suffering things to become uncertain, 
and of renewing quarrels without end. 

As to immemorial prescription, what we have said respect- 
ing it (§ 143) is sufficient to convince every one that it ought 
necessarily to take place between nations. 
^ 150. Ef- Usucaption and prescription bein^ so necessary to the tran- 
fects of the quillitv and happiness of human society, it is justly presumed 
iaw"°f*nL ^^^^ nations have consented to admit the lawfiil and rea- 
«on8*on this souablo uso of them, with a view to the general advantage, 
•ubjoct. and even to the private interest of each individual nation. 

Prescription of many years' standing, as well as usucap- 
tion, is, then, establishea by the voluntary law of nations 
(Prelim. § 21). 

Nay, more, as by virtue of that law nations are, in all 
doubtful cases, supposed to stand on a footing of equal right 
in treating with each other (ibid.), prescription, when founded 
on long undisputed possession, ought to have its full effect 
between nations, without admitting any allegation of the pos- 
[ 192 ] session being unjust, unless the evidence to prove it be very 
clear and convincing indeed. For, without such evidence, 
every nation is to be considered as a bona fide possessor. 
Such is the right that a sovereign state ought to allow to 
other states ; but to herself she should only allow the use of 
the internal and necessary right (Prelim. § 28). It is the 
bona fide possessor alone whose prescription will stand the 
test of conscience. 
iH 151. Law Since prescription is subject to so many difficulties, it would 
of treaties |jg y^^y proper that adjoining nations should by treaty adopt 
?[ ^j^'*'***™ some rule on this subject, particularly with respect to the 
number of years required to found a lawful prescription, since 
this latter point cannot in general be determined by the law 
of nature alone. If, in default of treaties, custom has de- 
termined any thing in this matter, the nations between whom 
this custom is in force, ought to conform to it (Prelim. § 26). 



2M 



OP TREATIES OP ALLIANCE, ETC. 192 



BOOK n. 
CHAP. xn. 



CHAP. XII. 

OP TREATIES OF ALLIANCE, AND OTHER PUBLIC TREA- 
TIES. (124) 

THE subject of treaties is undoubtedlji one of the most im- { 152. Na. 
portant that the mutual relations and affairs of nations can*"^®'*"**^ 
present us with. Having but too much reason to be con-***^^^**^ 
vinced of the little dependence that is to be placed on the 
natural obligations of bodies politic, and on the reciprocal 
duties imposed upon them by humanity, — the most prudent 
nations endeavour to procure by treaties those succours and 
advantages which the law of nature would insure to them, if 
it were not rendered ineffectual by the pernicious coimsels of 
a false policy. 

A treaty, in Latin fcedu%^ is a compact made with a view 
to the public welfare by the superior power, either for per- 
petuity, or for a considerable time. 

The compacts which have temporary matters for their ob- ; 153. Pac- 
ject are called agreements, conventions, and pactions. They tioM, agree. 
are accomplished by one single act, and not by repeated acts. ™*°*^ ^J 
These compacts are perfected in their execution once for all : ®®°^®" '*"*' 
treaties receive a successive execution whose duration equals 
that of the treaty. 

Public treaties can only be made by the superior powers, j 164. By 
by sovereigns, who contract in the name of the state. Thus, ^^o™ *«»- 
conventions, made between sovereigns respecting their ^^''ti^"^^* 
private affairs, and those between a sovereign and a private 
person, are not public treaties. 

The sovereign who possesses the full and absolute authority 
has, doubtless, a right to treat in the name of the state he 
represents ; and his engagements are binding on the whole 
nation. But all rulers of states have not a power to make 
public treaties by their own authority alone : some are obliged 
to take the advice of a senate, or of the representatives of the [ 198 ] 
nation. It is from the fundamental laws of each state that 
we must learn where resides the authority that is capable of 
contracting with validity in the name of the state. 

Notwithstanding our assertion above, that public treaties 
are made only by the superior powers, treaties of that nature 
may nevertheless be entered into by princes or communities, 
who have a right to contract them, either by the concession 
of the sovereign, or by the fundamental laws of the state, by 
particular reservations,' or by custom. Thus, the princes and 



(134) See in general, as to the Uw 47; and, as to commereial treaties in 
of nations respecting treaties, pwt, particular, 63, and 015 to 030 ; and see 
Book IV. Chap. IL Ac, page 432 to each separate treaty, 2 ChittyV Com. 
452, 1 Chitty's Commercial Law, 38 to Law, p. 183. 

287 



198 OF TREATIES OF ALLIANCE. 

BOOK II. free cities of Germany, though dependent on the emperor 
CHAP. XII. ^^^^ ^jjg empire, have the right of forming alliances with foreign 
powers. The constitutions of the empire give them, in this 
as in many other respects, the rights of sovereignty. Some 
cities of Switzerland, though subject to a prince, have made 
alliances with the cantons : the permission or toleration of 
the sovereign has given birth to such treaties, and long custom 
has established the right to contract them. 
i 1*^- Whe- As a state that has put herself under the protection of an- 
ther a state ^jj^gr^ {jg^g jjq^ q^ l^jj^t account forfeited her character of sove- 
teotio/may Tcignty (Book I. § 192), she may make treaties and contract 
make trea- alliances, unless she has, in the treaty of protection, expressly 
ties. renounced that right. But she continues for ever after bound 

by this treaty of protection, so that she cannot enter into any 
engagements contrary to it, — that is to say, engagements 
which violate the express conditions of the protection, or that 
are in their own nature repugnant to every treaty of protec- 
tion. Thus, the protected state cannot promise assistance to 
the enemies of her protector, nor grant them a passage. 
2 156. Trea- Sovereigns treat with each other through the medium of 
ties con- agents or proxies who are invested with sufficient powers for 
eluded by ^j^^ purpose, and are commonly called plenipotentiaries. To 
pienipoten- their officc We may apply all the rules of natural law which 
tiaries. rcspcct things done by commission. The rights of the proxy 
are determined by the instructions that are given him : he 
must not deviate from them; but every promise which he 
makes in the terms of his commission, and within the extent 
of his powers, is binding on his constituent. 

At present, in order to avoid all danger and difficulty, 
princes reserve to themselves the power of ratifying what has 
been concluded upon in their name by their ministers. The 
plenipotentiary commission is but a procuration cum libera. 
If this commission were to have its full effect, they could not 
be too circumspect in giving it. But, as princes cannot other- 
wise than by force of arms be compelled to fulfil their engage- 
ments, it is customary to place no dependence on their treaties, 
till they have agreed to and ratified them. Thus, as every 
agreement made by the minister remains invalid till sanctioned 
by the prince's ratification, there is less danger in vesting him 
with unlimited powers. But, before a prince can honourably 
[ 194 ] refuse to ratify a compact made in virtue of such plenipoten- 
tiary commission, he should be able to allege strong and sub- 
stantial reasons, and, in particular, to prove that his minister 
has deviated from his instructions. 
i 157. Va- A treaty is valid if there be no defect in the manner in 
lidity of which it has been concluded : and for this purpose nothing 
treaties. ^^j.^ ^^^ ^^ required than a sufficient power in the contract- 
ing parties, and their mutual consent sufficiently declared. 
1 158. III. An injury cannot, then, render a treaty invalid. He who 
jurv does enters into engagements ought carefully to weigh every thing 

288 



AND OTHER PUBLIC TREATIES. 194 

before lie concludes them ; he may do what he pleases with book n. 
his own property, forego his rights, and renounce his advan- ^^^' ^"• 



ta^es, as he thinks proper ; the acceptor is not obliged to in- not render 
quire into his motives, and to estimate their due weight. If we them void, 
might recede from a treaty because we found ourselves injured 
by it, there would be no stability in the contracts of nations. 
Civil laws may set bounds to injury, and determine what de- 
gree of it shall be capable of invalidating a contract. But sove- 
reigns are subject to no superior judge. How shall they be able 
to prove the injury to each other's satisfaction ? Who shall 
determine the degree of it sufficient to invalidate a treaty ? 
The peace and happiness of nations manifestly require that 
their treaties should not depend on so vague and dangerous a 
plea of invalidity. 

A sovereign nevertheless is in conscience bound to pay a § 159. Duty 
regard to equity, and to observe it as much as possible in all °^.'*»^°^ ''^ 
his treaties. And, if it happens that a treaty which he has ^ ^^1^^ 
concluded with upright intentions, and without perceiving any 
unfairness in it, should eventually prove disadvantageous to 
an ally, nothing can be more honourable, more praiseworthy, 
more conformable to the reciprocal duties of nations, than to 
relax the terms of such treaty as far as he can do it consist- 
ently with his duty to himself, and without exposing himself 
to danger, or incurring a considerable loss. 

Though a simple injury, or some disadvantage in a treaty, § 160. Nul- 
be not sufficient to invalidate it, the case is not the same with ^^y °^,^" 
those inconveniences that would lead to the ruin of the nation, ^^^jj. 
Since, in the formation of every treaty, the contracting parties cioua to the 
must be vested with sufficient powers for the purpose, a treaty state, 
pernicious to the state is null, and not at all obl^atory, as no [ 195 J 
conductor of a nation has the power to enter into engage- 
ments to do such things as are capable of destroying the state, 
for whose safety the government is intrusted to him. The 
nation itself, being necessarily obliged to perform every thing 
required for its preservation and safety (Book I. § 16, &c.), 
cannot enter into engagements contrary to its indispensable 
obligations. In the year 1506, the states-general of the 
kingdom of France, assembled at Tours, engaged Louis XII. 
to break the treaty he had concluded with the emperor Maxi- 
milian and the archduke Philip, his son, because that treaty 
was pernicious to the kingdom. They also decided that 
neither the treaty, nor the oath that had accompanied it, 
could be binding on the king, who had no right to alienate 
the property of the crown.* We have treated of this latter 
source of invalidity in the twenty-first chapter of Book I. 

For the same reason — the want of sufficient powers — a § i6i. Nul- 
treaty concluded for an unjust or dishonest purpose is abso-^ of trea- 
lutely null and void, — nobody having a right to engage to do fo^an unjust 

* See the French historians. 
37 Z 289 



195 OJ- TREATIES OF ALLIANCE, 

BOOK n. things contrary to the law of nature. Thus, an offensive 
CHAP. XII. alliance, made for the purpose of plundering a nation from 
or dishonest whom no injury has heen received, may or rather ought to be 
purpose, broken. 

§i62.Whe- It is asked, whether it be allowable to contract an alliance 
*®^^*^^with a nation that does not profess the true religion, and 
con^ted w^^tl^^r treaties made with the enemies of the faith are valid, 
with those Grotius has treated this subject at large :* and the discussion 
who do not might have been necessary at a time when party-rage still 
profess the obscured those principles which it had long caused to be for- 
rion gotten ; but we may venture to believe that it would be super- 

fluous in the present age. The law of nature alone regulates 
the treaties of nations : the dMFerence of religion is a thing 
absolutely foreign to them. Different people treat with each 
other in quality of men, and not under the character of Chris- 
tians, or of Mohammedans. Their common safety requires that 
they should be capable of treating with each other, and of 
treating with security. Any religion that should in this case 
clash with the law of nature, would, on the very face of it, 
wear the stamp of reprobation, and could not pretend to derive 
its origin from the great Author of nature, who is ever steady, 
ever consistent with himself. But, if the maxims of a religion 
tend to establish it by violence, and to oppress all those who 
will not embrace it, the law of nature forbids us to favour 
that religion, or to contract any unnecessary alliances with 
[ 196 ] its inhuman followers, and the common safety of mankind 
invites them rather to enter into an alliance against such a 
people, — to repress such outrageous fanatics, who disturb the 
public repose and threaten all nations. 
§ 163. Obli- It is a settled point in natural law, that he who has made 
observin^ a promise to any one has conferred upon him a real right to 
treaties. require the thing promised, — and, consequently, that the 
breach of a perfect promise is a violation of another person's 
right, and as evidently an act of injustice as it would be to 
rob a man of his property. The tranquillity, the happiness, 
the security of the human race, wholly depend on justice, — 
on the obligation of paying a regard to the rights of others. 
The respect which others pay to our rights of domain and 
property constitutes the security of our actual possessions ; 
the faith of promises is our security for things that cannot 
be delivered or executed upon the spot. There would no 
longer be any security, no longer any commerce between 
mankind, if they did not think themselves obliged to keep 
faith with each other, and to perform their promises. This 
obligation is, then, as necessary as it is natural and indubita- 
ble, between nations that live together in a state of nature, 
and acknowledge no superior upon earth, to maintain order 
and peace in their society. Nations, therefore, and their con- 

* De Jure Belli et Pads, lib. ii. cap. xv. § 8, et seq. 
290 



AND OTHER PUBLIC TREATIES. 196 

ductors, ought inviolably to observe their promises and their book n. 
treaties. This great truth, though too often neglected in ^^^^- "'• 
practice, is generally acknowledged by all nations :* the re- 
proach of perfidy is esteemed by sovereigns a most atrocious 
affront ; yet he who does not observe a treaty is certainly 
perfidious, since he violates his faith. On the contrary, no- 
thing adds so great a glory to a prince, and to the nation he 
governs, as the reputation of an inviolable fidelity in the per- 
formance of promises. By such honourable conduct, as much 
or ^ven more than by her valour, the Swiss nation has ren- 
dered herself respectable throughout Europe, and is de- 
servedly courted by the greatest monarchs who intrust their 
personal safety to a body-guard of her citizens. The parlia- 
ment of England has more than once thanked the king for 
his fidelity and zeal in succouring the allies of his crown. 
This national magnanimity is the source of immortal glory ; 
it presents a firm basis on which nations may build their con- 
fidence ; and thus it becomes an unfailing source of power 
and splendour. 

As the engagements of a treaty impose on the one hand a § i64. The 
perfect obligation, they produce on the other a perfect right, violation of 
The breach of a treaty is therefore a violation of the perfect * ^^^^aty w 
right of the party with whom we have contracted ; and this ?|^^^ ^' 
is an act of injustice against him. 

A sovereign already bound by a treaty cannot enter into§i66.Trca- 
others contrary to the first. The things respecting which ties cannot 
he has entered into engagements are no longer at his disposal. ^ ™**'® 
If it happens that a posterior treaty be found, in any parti- JJ^"^^. 
cular point, to clash with one of more ancient date, the new dy existing. 
treaty is null and void with respect to that point, inasmuch as 
it tends to dispose of a thing that is no longer in the power of 
him who appears to dispose of it. (We are here to be under- 
stood as speaking of treaties made with different powers.) 
If the prior treaty is kept secret, it would be an act of con- 
summate perfidy to conclude a contrary one, which may be 
rendered void whenever occasion serves. Nay, even to enter 
into engagements, which, from the eventual turn of affairs, 
may ohwce at a future day to militate against the secret 
treaty, and from that very circumstance to prove ineffectual 
and nugatory, is by no means justifiable, unless we have the 
ability to make ample compensation to our new ally : other- 
wise it would be practising a deception on him, to promise him 
a thing without informing him that cases may possibly occur 
which will not allow us to substantiate our promise. The ally 
thus deceived is undoubtedly at liberty to renounce the treaty: 
but, if he chooses rather to adhere to it, it will hold good with [ 197 ] 
respect to all the articles that do not clash with the prior treaty. 

* Mohammed warmly recommend* treattesw — Ockley'a Histoiy of the 8a- 
ed to his disciples the obeerraiice of racens, toL i. 

291 



197 OF TREATIES OF ALLIANCE, 

BOOK n. There is nothing to prevent a sovereign from entering into 
CHAP, xu. engagements of the same nature with two or more nations, if 
§ 166. How he be able to fulfil those several engagements to his different 
treaties may allies at the Same time. For instance, a commercial treaty 
be (included ^^j^ qj^^ nation does not deprive us of the liberty of afterwards 
nations with contracting similar engagements with other states, unless we 
the same have, in the former treaty, bound ourselves by a promise not 
view. to grant the same advantages to any other nation. We may 

in the same manner promise to assist two different allies with 
troops, if we are able to furnish them, or if there is no pro- 
bability that both will have occasion for them at the same time. 
§167. The If nevertheless the contrary happens, the more ancient 
more an- ^jiy jg entitled to a preference : for, the engagement was pure 
enUtied to a *^^ absolute with respect to him ; whereas we could not con- 
preference, tract with the more recent ally, without a reservation of the 
rights of the former. Such reservation is founded in justice, 
and is tacitly understood, even if not expressly made. 
§ 168. We The justice of the cause is another ground of preference 
sisUnOT hi '^^^^^^^ *^^ allies. We ought even to refuse assistance to 
an unjust ^^^ ^^^ whose cause is unjust, whether he be at war with one 
war. of our allies, or with another state : to assist him on such 

occasion, would in the event be the same thing as if we had 
contracted an alliance for an unjust purpose ; which we are 
not allowed to do (§ 161). No one can be validly engaged 
to support injustice. 
§169. Ge- Grotius divides treaties into two general classes, — ^first, 
"®'"^ ?^' ^Am« which turn merely on things to which the parties were 
ties. ^'already hound hy the law of nature, — secondly, those by 
which they enter into further engagements."*^ By the former 
1. Those -^e acquire a perfect right to things to which we before had 
to UiLq *^ al- ^^^ *^ imperfect right, so that we may thenceforward de- 
ready Se " niand as our due what before we could only request as an 
by the law office of humanity. Such treaties became very necessary be- 
of nature, tween the nations of antiquity, who, as we have already ob- 
served, did not think themselves bound to any duty towards 
people who were not in the number of their allies. They 
are useful even between the most polished nations, in order 
the better to secure the succours they may expect, — ^to deter- 
mine the measure and degree of those succours, and to show 
on what they have to depend, — to regulate what cannot in 
general be determined by the law of nature, — and thus to 
obviate all difficulties, by providing against the various inter- 
pretations of that law. Finally, as no nation possesses inex- 
haustible means of assistance, it is prudent to secure to our- 
selves a peculiar right to that assistance which cannot be 
granted to all the world. 

To this first class belong all simple treaties of peace and 
friendship, when the engagements which we thereby contract 

* De Jure Belli et Pacis, lib. IL cap. xr. § 6. 
292 y 



AND OTHER PUBLIC TREATIES. 198 

make no addition to those duties that men owe to each other book h. 
as brethren and as members of the human society : such are c^ap. xh. 
those treaties that permit commerce, passage/ &c. 

If the assistance and offices that are due by virtue of such § 170. Col- 
a treaty should on any occasion prove incompatible with the iwion of 
duties a nation owes to herself, or with what the sovereign ^®®® }^^' 
owes to his own nation, the case is tacitly and necessarfly du*i^*^^e ° 
excepted in the treaty. For, neither the nation nor the ©we to our- 
Bovereign could enter into an engagement to neglect the care Bclves. 
of their own safety, or the safety of the state, in order to 
contribute to that of their ally. If the sovereign, in order 
to preserve his own nation, has occasion for the things he 
has promised in the treaty, — if, for instance, he has engaged 
to furnish com, and in a time of dearth he has scarcely suf- 
ficient for the subsistence of his subjects, he ought without 
hesitation to give a preference to his own nation ; for, it is 
only so far as he has it in his power to give assistance to a 
foreign nation, that he naturally owes such assistance ; and 
it was upon that footing alone that he could promise it in a 
treaty. Now, it is not in his power to deprive his own nation 
of the means of subsistence in order to assist another nation 
at their expense. Necessity here forms an exception, and he 
does not violate the treaty, because he cannot fulfil it. 

The treaties by which we simply agree not to do any evil §171. Trea- 
to an ally, to abstain, with respect to him, from all harm, ^e* in which 
offence, and injury, are not necessary, and produce no new "^^^^^^ 
right, since every individual already possesses a perfect natu- J^ ^o in- 
ral right to be exempt from harm, injury, and real offence, jury. 
Such treaties, however, become very useful, and accidentally 
necessary, among those barbarous nations who think they 
have a right to act as they please towards foreigners. They 
are not wholly useless with nations less savage, who, without 
so far divesting themselves of humanity, entertain a much 
less powerful sense of a natural obligation, than of one which 
they have themselves contracted by solemn engagements: 
and would to God that this manner of thinking were entirely 
confined to barbarians ! We see too frequent effects of it 
among those who boast of a perfection much superior to the 
law of nature. But the imputation of perfidy is prejudicial 
to the rulers of nations, and thus becomes formidable even to 
those who are little solicitous to merit the appellation of vir- 
tuous men, and who feel no scruple in silencing the re- 
proaches of conscience. 

Treaties by which we contract engagements that were not §172. Trea^ 
imposed on us by the law of nature, are either equal or ttw- ^^ ?*"" 

^^^' , . ,.,.,. . . tl^«« that 

Equal treaties are those m which the contracting parties are not na- 

proraise the same things, or things that are equivalent, or, turally due 

finally, things that are equitably proportioned, so that the ]^^^*^ 

condition of the parties is equal. Such is, for example, a "*^®'* 

z 2 293 



198 OF TREATIES OF ALLIAI^CE, 

BOOK u. defensive alliance, in which the parties reciprocally stipulate 
CHAP, xu. for the same succours. Such is an offensive alliance, in 
[ 199 ] which it is agreed that each of the allies shall furnish the 
same number of vessels, the same number of troops, of 
cavalry and infantry, or an equivalent in vessels, in troops, 
in artillery, or in money. Such is also a league in which 
the quota of each of the allies is regulated in proportion to 
the interest he takes or may have in the design of the league. 
Thus, the emperor and the king of England, in order to in- 
duce the states-general of the United Provinces to accede to 
the treaty of Vienna of the 16th of March, 1731, consented 
that the republic should only promise to her allies the assist- 
ance of four thousand foot and a thousand horse, though they 
engaged, in case of an attack upon the republic, to furnish 
her, each, with eight thousand foot and four thousand horse. 
We are also to place in the class of equal treaties those which 
stipulate that the allies shall consider themselves as embarked 
in a common cause, and shall act with all their strength. 
Notwithstanding a real inequality in their strength, they are 
nevertheless willing in this instance to consider it as equal. 

Equal treaties may be subdivided into as many species as 
there are of different transactions between sovereigns. Thus, 
they treat of the conditions of commerce, of their mutual 
defence, of associations in war, of reciprocally granting each 
other a passage, or refusing it to the enemies of their ally ; 
they engage not to build fortresses in certain places, &c. But 
it would be needless to enter into these particulars : generals 
are sufficient, and are easily applied to particular cases. 
§ 173. Ob- Nations being no less obliged than individuals to pay a 
ligation of regard to equity, they ought, as much as possible, to pre- 
I^J^^"? serve equality in their treaties. When, therefore, the parties 
treaties. s,re able reciprocally to afford each other equal advantages, 
the law of nature requires that their treaties should be equal, 
unless there exist some particular reason for deviating from 
that equality, — such, for instance, as gratitude for a former 
benefit, — the hope of gaining the inviolable attachment of a 
nation, — some private motive, which renders one of the con- 
tracting parties particularly anxious to have the treaty con- 
cluded, &c. Nay, viewing the transaction in its proper point 
of light, the consideration of that particular reason restores 
to the treaty that equality which seems to be destroyed by 
the difference of the things promised. 

I see those pretended great politicians smile, who employ 
all their subtilty in circumventing those with whom they treat, 
and in so managing the conditions of the treaty, that all the 
advantages shall accrue to their masters. Far from blushing 
at a conduct so contrary to equity, to rectitude and natural 
honesty, they glory in it, and think themselves entitled to the 
appellation of able negotiators. How long shall we continue 
to see men in public characters take a pride in practices that 

294 



AND OTHSR PtJBLte T&BATtfe^ l99 

^ould disgrace a private individual ? The pi^hfaW 'flifeft*, if he book il 
is void of conscience, laughs also at the rules of morality and chap, xii. 
justice ; but he laughs in secret : it would be dangerous and 
prejudicial to him to make a public mookery of them. Men [ 200 ] 
in power more openly sacrifice honour and Ironesty to present 
advantage: but, fortunately for mankind, it often happens 
that such seeming advantage proves fatal to them ; and even 
between sovereigns, candour and rectitude are found to be 
the safest policy. All the subtilties, all the tergiversations 
of a famous minister, on tbe occasion of a treaty in which 
Spain was deeply interested, turned =at length to his own 
confusion, and to the detriment of his ' master ; while Eng- 
land, by her good faith and generosity to her allies, gained 
immense credit, and rose to the highest pitch of influence 
and respectability. 

When people speak of equal treaties, they have commonly § 174. Dif- 
in their minds a double idea of equality, viz. equality in the ference be- 
engagements, and equality in the dignity of the contracting *^®®? ^"*^ 
parties. It becomes therefore necessary to remove all ambi- gq*u^^*i^? 
guity ; and for that purpose, we may make a distinction be- ances. 
tween equal treaties and equal alliances. Equal treaties are 
those in which there is an equality in the promises made, as 
we have above explained (§172); and equal alliances^ those 
in which equal treats with equal, making no difference in the 
dignity of the contracting parties, or, at least, admitting no too 
glaring superiority, but merely a pre-eminence of honour and 
rank. Thus kings treat with the emperor on a footing of 
equality, though they do not hesitate to allow him precedency ; 
thus great republics treat with kings on the same footing, 
notwithstanding the pre-eminence which the former now-a- 
days yield to the latter. Thus all true sovereigns ought to 
treat with the most powerful monarch, since they are as really 
sovereigns, and as independent as himself. (See § 37 of this 
Book.) 

Unequal treaties are those in which the allies do not reci- § 175. Un. 
procally promise to each other the same things, or things equal trea- 
equivalent ; and an alliance is unequal when it makes a differ- ^^ ^^ ^^' 
ence in the dignity of the contracting parties. It is true, that ^^^^ 
most commonly an unequal treaty will be at the same time an 
unequal alliance ; as great potentates are seldom accustomed 
to give or to promise more than is given or promised to them, 
unless such concessions be fully compensated in the article of 
honour and glory ; and, on the other hand, a weak state does 
not submit to burdensome conditions without being obliged 
also to acknowledge the superiority of her ally. 

Those unequal treaties that are at the same time unequal 
alliances, are divided into two classes, — the first consisting of 
those where the inequality prevails on the side of the more con- 
siderahle pawer^ — the second comprehending treaties where 
th^ inequality is on the side of the inferior power. 

295 



200 OF TREATIES OF ALLIANCE, 

BOOK u. Treaties of the former class, without attributing to the more 
CHAP. xTi. powerful of the contracting parties any right over the weaker, 
simply allow him a superiority of honours and respect. We 
have treated of this in Book I. § 5. Frequently a great mo* 
narch, wishing to engage a weaker state in his interest, offers 
[ 201 ] her advantageous conditions, — promises her gratuitous suc- 
cours, or greater than he stipulates for himself: but at the 
same time he claims a superiority of dignity, and requires re- 
spect from his ally. It is this last particular which renders 
the alliance uneqtial: and to this circumstance we must atten- 
tively advert ; for, with alliances of this nature we are not to 
confound those in which the parties treat on a footing of equal- 
ity, though the more powerful of the allies, for particular 
reasons, gives more than he receives, promises his assistance 
gratis, without requiring gratuitous assistance in his turn, or 
promises more considerable succours, or even the assistance 
of all his forces : — ^here the alliance is equal, but the treaty 
is unequal, unless indeed we may be allowed to say, that, as 
the party who makes the greater concessions has a greater 
interest in concluding the treaty, this consideration restores 
the equality. Thus, at a time when France found herself em- 
barrassed in a momentous war with the house of Austria, 
and the cardinal de Richelieu wished to humble that formi- 
dable power, he, like an able minister, concluded a treaty 
with Gustavus Adolphus, in which all the advantage appeared 
to be on the side of Sweden. From a bare consideration of 
the stipulations of that treaty, it would have been pronounced 
an unequal one ; but the advantages which France derived 
from it, amply compensated for that inequality. The alliance 
of France with the Swiss, if we regard the stipulations alone, 
is an unequal treaty ; but the valour of the Swiss troops has 
long since counterbalanced that inequality; and the differ- 
ence in the interests and wants of the parties serves still 
further to preserve the equilibrium. France, often involved 
in bloody wars, has received essential services from the Swiss : 
the Helvetic body, void of ambition, and untainted with the 
spirit of conquest, may live in peace with the whole world ; 
they have nothing to fear, since they have feelingly convinced 
the ambitious, that the love of liberty gives the nation suffi- 
cient strength to defend her frontiers. This alliance may at 
certain times have appeared unequal :— our forefathers* paid 
little attention to ceremony : — but, in reality, and especially 
since the absolute independence of the Swiss is acknowledged 
by the empire itself, the alliance is certainly equal, although 
the Helvetic body do not hesitate to yield to the king of 
France all that pre-eminence which the established usage of 
modern Europe attributes to crowned heads, and especially 
to great monarchs. 

* The author was a native of Switzerland. 
296 



AKB OfUttL fVBtitC ¥tlSATIES. 201 

Treaties in which the inequality prevails on the side of the boos h. 
inferior power — that is to say, those which impose on the chap, xh. 
weaker party more extensive obligations or greater burdens, 
or bind him down to oppressive or disagreeable conditions, — 
these unequal treaties, I say, are always at the same time 
unequal alliances; for, the weaker party never submits to 
burdensome conditions, without being obliged also to acknow- 
ledge the superiority of his ally. These conditions are com- 
monly imposed by the conqueror, or dictated by necessity, [ 202 ] 
which obliges a weak state to seek the protection or assist- 
ance of another more powerful ; and by this very step, the 
weaker state acknowledges her own inferiority. Besides, 
this forced inequality in a treaty of alliance is a disparage- 
ment to her, and lowers her dignity, at the same time that it 
exalts that of her more powerful ally. Sometimes also, the 
weaker state not being in a condition to promise the same suc- 
cours as the more powerful one, it becomes necessary that she 
should compensate for her inability in this point, by engage- 
ments which degrade her below her ally, and often even sub- 
ject her, in various respects, to his will. Of this kind are all 
those treaties in which the weaker party alone engages not 
to make war without the consent of her more powerful ally, — 
to have the same friends and the same enemies with him, — 
to support and respect his dignity, — ^to have no fortresses in 
certain places, — not to trade or raise soldiers in certain free 
countries, — to deliver up her vessels of war, and not to build 
others, as was the case of the Carthaginians when treating 
with their Roman conquerors, — to keep up only a certain 
number of troops, &c. 

These unequal alliances are subdivided into two kinds; 
they either impair the sovereignty^ or they do not. We have 
slightly touched on this in Book I. Ch. I. and XVI. 

The sovereignty subsists entire and unimpaired when none 
of its constituent rights are transferred to the superior ally, 
or rendered, as to the exertion of them, dependent on his 
will. But the sovereignty is impaired when any of its rights 
are ceded to an ally, or even if the use of them be merely 
rendered dependent on the will of that ally. For example, 
the treaty does not impair the sovereignty, if the weaker 
state only promises not to attack a certain nation without the 
consent of her ally. By such an engagement she neither 
divests herself of .her right, nor subjects the exertion of it to 
another's will ; she only consents to a restriction in favour 
of her ally : and thus she incurs no greater diminution of 
liberty than is incurred by promises of every kind. Such 
reservations are every day stipulated in alliances that are 
perfectly equal. But, if either of the contracting parties 
engages not to make war against any one whatsoever without 
the consent or permission of an ally who on his side does not 
make the same promise, the former contracts an unequal alli- 

38 287 



202 OF TREATIES OP ALLIANGB, 

BOOK II. ance, with diminution of sovereigntj ; for he deprives him-* 
CHAP, xn. gelf of one of the most important branches of the sovereign 
power^ or renders the exertion of it dependent on another's 
will. The Carthaginians having, in the treaty that termi- 
nated the second Punic war, promised not to make war on 
any state without the consent of the Roman people, were 
thenceforward, and for that reason, considered as dependent 
on the Romans. 
§ 176. How When a nation is forced to submit to the will of a superior 
*"? *^^?® power, she may lawfully renounce her former treaties, if the 
nution of' P^-fty with whom she is obliged to enter into an alliance re- 
sovereignty quires it of her. As she then loses a part of her sovereignty, 
may annul her ancient treaties fall to the ground together with the power 
preceding ^y^^^^ j^^^^j concluded them. This is a necessity that cannot be 
T^^rr^ 1 ^°^P^*®^ ^^ ^®^ ^ * crime : and since she would have a right 
L J to place herself in a state of absolute subjection, and to re- 
nounce her own sovereign, if she found such measures neces- 
sary for her preservation, — by a much stronger reason, she 
has a right, under the same necessity, to abandon her allies. 
But a generous people will exhaust every resource before they 
will submit to terms so severe and so humiliating. 
§ 177. We In general, as every nation ought to be jealous of her glory, 
ought to careful of maintaining her dignity, and preserving her inde- 
much as pendence, nothing short of the last extremity, or motives the 
possible most weighty and substantial, ought CA'er to induce a people 
making un- to contract an unequal alliance. This observation is particu- 
equal alli- l^^ij meant to apply to treaties where the inequality prevails 
on the side of the weaker ally, and still more particularly to 
those unequal alliances that degrade the sovereignty. Men 
of courage and spirit will accept such treaties from no other 
hands but those of imperious necessity. 
§ 178. Mu- Notwithstanding every argument which selfish policy may 
tual duties suggest to the Contrary, we must either pronounce sovereigns 
wiA^respect *^ ^^ absolutely emancipated from all subjection to the law 
to unequal of nature, or agree that it is not lawful for them, without 
alliances, just reasons, to compel weaker states to sacrifice their dig- 
nity, much less their liberty, by unequal alliances. Nations 
owe to each other the same assistance, the same respect, the 
same friendship, as individuals living in a state of nature. 
Far from seeking to humble a weaker neighbour, and to de- 
spoil her of her most valuable advantages, they will respect 
and maintain her dignity and her liberty, if they are inspired 
by virtue more than by pride — if they are actuated by prin- 
ciples of honour more than by the meaner views of sordid 
interest — nay, if they have but sufficient discernment to dis- 
tinguish their real interests. Nothing more firmly secures 
the power of a great monarch than his attention and respect 
to all other sovereigns. The more cautious he is to avoid 
o£fending his weaker brethren, the greater esteem he testifies 
for them, the more wil} they revere him in turn ; they feel 
* ??9 , • • 



ANB OTHEB PUBUO TBEATISS. 208 

aa affeetion for a power whose Bnperioritj over them is dis- book n. 
played only by the conferring of favours : they cling to such cflAP. xii. 
a monarch as their prop and support ; ' and he becomes 
the arbiter of nations. Had his demeanour been stamped 
with arrogance, he would have been the object of their 
jealousy and fear, and might perhaps have one day sunk 
under their united efforts. 

But, as the weaker party ought, in his necessity, to accept § 179. In 
with gratitude the assistance of the more powerful, and not alliances 



to refuse him such honours and respect as are flattering to ^^^"ij^ 
the person who receives them, without degrading him by|^^^tiJ7 
whom they are rendered; so, on the other hand, nothing is side of the 
more conformable to the law of nature than a generous grant mw® pow- 
of assistance from the more powerful state, unaccompanied ®*^ P*^' 
by any demand of a return, or, at least, of an equivalent. 
And in this instance also, there exists an inseparable connec- [ 204 ] 
tion between interest and duty. Sound policy holds out a 
caution to a powerful nation not to suffer the lesser states in 
her neighbourhood to be oppressed. If she abandon them to 
the ambition of a conqueror, he will soon become formidable 
to herself. Accordingly, sovereigns, who are in general suf- 
ficiently attentive to their own interests, seldom fail to reduce 
this maxim to practice. Hence those alliances, sometimes 
against the house of Austria, sometimes against its rival, 
according as the power of the one or the other preponderates. 
Hence that balance of power, the object of perpetual nego- 
tiations and wars. 

When a weak and poor nation has occasion for assistance 
of another kind — when she is afflicted by famine — we have 
seen (§ 5), that those nations who have provisions ought to 
supply her at a fair price. It were noble and generous to 
furnish them at an under price, or to make her a present of 
them, if she be incapable ^ of paying their value. To oblige 
her to purchase them by an unequal alliance, and especially 
at the expense of her liberty — to treat her as Joseph for- 
merly treated the Egyptians — would be a cruelty almost as 
dreadful as suffering her to perish with famine. 

But there are cases where the inequality of treaties and § 180. How 
alliances, dictated by some particular reasons, is not contrary inequality 
to equity, nor, consequently, to the law of nature. Such, in ^ddUa^- 
general, are all those cases in which the duties that a nation ces may be 
owes to herself, or those which she owes to other nations, pre^ conformable 
scribe to her a departure from the line of equality. If, for ^^ *^® 1»^ 
instance, a weak state attempts, without necessity, to erect a ^^^^' 
fortress, which she is incapable of defending, in a place wher^ 
it might become very dangerous to her neighbour if ^ver it 
should fall into the hands of a powerful enemy, that neigh« 
hour may oppose the construction of the fortress ; and, if h^ 
does not find it convenient to pay the lesser state a compen* 
sation for complying with his desire, he may force her com* 

999 



204 OP TRBATIBS OF ALLIANCE, 

BOOK n. pliance, by threatening to block up the roads and avenues of 
CHAP, xn. eommunicationj to prohibit all intercourse between the two 
nations, to build fortresses, or to keep an army on the fron- 
tier, to consider that little state in a suspicious light, &c. He 
thus indeed imposes an unequal condition ; but his conduct is 
authorized by the care of his own safety. In the same man- 
ner he may oppose the forming of a highway, that would open 
to an enemy an entrance into his state. War might furnish 
us with a multitude of other examples. But rights of this 
nature are frequently abused ; and it requires no less mode- 
ration than prudence to avoid turning them into oppression. 

Sometimes those duties to which other nations have a 
claim, recommend and authorize inequality in a contrary 
sense, without affording any ground of imputation against a 
sovereign, of having neglected the duty which he owes to 
himself or to his people. Thus, gratitude — the desire of 
showing his deep sense of a favour received — ^may induce a 
generous sovereign to enter into an alliance with joy, and to 
[ 205 ] give in the treaty more than he receives. 
§ 181. Ine- It is also Consistent with justice to impose the conditions 
quality im- of an Unequal treaty, or even an unequal alliance, by way 
P^*^^|?y of penalty, in order to punish an unjust aggressor, and ren- 
bSieiit '^"' ^^^ ^^^ incapable of easily injuring us for the time to come. 
Such was the treaty to which the elder Scipio Africanus forced 
the Carthaginians to submit, after he had defeated Hannibal. 
The conqueror often dictates such terms : and his conduct in 
this instance is no violation of the laws of justice or equity, 
provided he do not transgress the bounds of moderation, 
after l^e has been crowned with success in a just and neces- 
sary war. 
§ 183. Other The different treaties of protection — those by which a state 
kinds of renders itself tributary or feudatory to another — form so 
which we jj^gmj different kinds of unequal alliances. But we shall not 
eSewhere^'* repeat here what we have said respecting them in Book I. 

Chap. I. and XVI. 
§ 183. Per- By another general division of treaties or alliances, they 

■onal and ^^^ distinffuished into personal and real: the former are those 
reEl treaties, ii^i *»i • • -i 

that relate to the persons of the contracting parties, and are 

confined and in a manner attached to them. Real alliances 
relate only to the matters in negotiation between the contract- 
ing parties, and are wholly independent of their persons. 

A personal alliance expires with him who contracted it. 

A real alliance attaches to the body of the state, and sub- 
sists as long as the state, unless the period of its duration 
has been limited. 

It is of considerable importance not to confound these two 
sorts of alliances. Accordingly, sovereigns are at present 
accustomed to express themselves in their treaties in such a 
manner as to leave no uncertainty in this respect : and this 
is doubtless the best and safest method. In default of tliis 
aoo 



AKD OTHBfi PUBLIC lEBATIBS. 205 

precaution, the very subject of the treaty, or the expressions book h. 
in which it is couched, may furnish a clue to discover whether chap, xn. 
it be real or personal. On this head we shall lay down some 
general rtdes. 

In the first place, we are not to conclude that a treaty is § i84. 
a personal one from the bare circumstance of its naming the Naming the 
contracting sovereigns : for, the name of the reigning sove- con^ctin? 
reign is often inserted with the sole view of showing with ^^^iy 
whom the treaty has been concluded, without meaning thereby does not 
to intimate that it has been made with himself personally, render it 
This is an observation of the civilians Pedius and Ulpian,* personal, 
repeated by all writers who have treated of these subjects. 

Every alliance made by a republic is in its own nature real, § 185. An 
for it relates only to the body of the state. When a free peo- aUiance 
pie, a popular state, or an aristocratical republic, concludes a-^^^bUc * 
treaty, it is the state herself that contracts ; and her engage* ^^1. 
ments do not depend on the lives of those who were only the [ 206 ] 
instruments in forming them : the members of the people, or 
of the governing body, change and succeed each other ; but 
the state still continues the same. 

Since, therefore, such a treaty directly relates to the body 
of the state, it subsists, though the form of the republic should 
happen to be changed — even though it should be transformed 
into a monarchy. For, the state and the nation are still the 
same, notwithstanding every change that may take place in 
the form of the government ; and the treaty concluded with 
the nation remains in force as long as the nation exists. But 
it is manifest that all treaties relating to the form of govern- 
ment are exceptions to this rule. Thus two popular states, 
that have treated expressly, or that evidently appear to have 
treated, with the view of maintaining themselves in concert 
in their state of liberty and popular government, cease to be 
allies from the very moment that one of them has submitted 
to be governed by a single person. 

Every public treaty, concluded by a king or by any other § 186. 
monarch, is a treaty of the state ; it is obligatory on the '^'^^?, 
whole state, on the entire nation which the king represents, ^\i^gg or 
and whose power and rights he exercises. It seems then at other 
first view, that every public treaty ought to be presumed real, monarchs. 
as concerning the state itself. There can be no doubt with 
respect to the obligation to observe the treaty : the only ques- 
tion that arises, is respecting its duration. Now, there is 
often room to doubt whether the contracting parties have 
intended to extend their reciprocal engagements beyond the 
term of their own lives, and to bind their successors. Con- 
juncture^ change ; a burden that is at present light, may in 
other circumstances become insupportable, or at least oppres- 
sive: the manner of thinking among sovereigns is no less 

* Digest, lih. il tit. »▼. de Pactis, leg. viL § 8. 

2 A 301 



206 OF TREATIES OF ALLIANCE, 

BOOK II. variable ; and there are certain things of which it is proper 

CHAP. XII. that each prince should be at liberty to dispose according to 

his own system. There are others that are freely granted to 

one king, and would not be allowed to his successor. It 

therefore becomes necessary to consider the terms of the 

treaty, or the matter which forms the subject of it, in order 

to discover the intentions of the contracting powers. 

petualtrea- Perpetual treaties, and those made for a determinate 

ties, and period, are real ones, since their duration cannot depend on 

thoae for a the lives of the contracting parties. 

certain time, jj^ ^j^^ same manner, when a king declares in the treaty 
§ 188, Trear that it is made "for himself and his successors," it is mani- 
fonhe king ^®®* *^** ^^^^ ^^ * ^®*^ treaty. • It attaches to the state, and 
and his is intended to last as long as the kingdom itself, 
suocessors. When a treaty expressly declares that it is made for the 
§ 189. good of the kingdom, it thus furnishes an evident proof that 
Treaties the contracting powers did not mean that its duration should 
Se^ffoai of ^®P®^^ ^^ *^** ^^ *^®^^ ^^"^ lives, but on that of the kingdom 
the king- itself. Such treaty is therefore a real one. 
dom. Independently even of this express declaration, when a 

[ 207 J treaty is made for the purpose of procuring to the state a 
certain advantage which is in its own nature permanent and 
unfailing, there is no reason to suppose that the prince by 
whom the treaty has been concluded, intended to limit it to 
the duration of his own life. Such a treaty ought therefore 
to be considered as a real one, unless there exist very power- 
ful evidence to prove that the party with whom it was made 
granted the advantage in question only out of regard to the 
prince then reigning, and as a personal favour : in which case 
the treaty terminates with the life of the prince, as the motive 
for the concession expires with him. But such a reservation 
is not to be presumed on slight grounds : for, it would seem, 
that, if the contracting parties had had it in contemplation, 
they should have expressed it in the treaty. 
§ 190. How In case of doubt, where there exists no circumstance by 
presump- which WO Can clearly prove either the personality or the 

tion ought reality of a treaty, it ought to be presumed a real treaty if it 

to be found- I'n • x i? /• ° ii .• i •/• /• j- "^ 

ed in doubu ^^hiefly consists of favourable articles, — if of odious ones, a 

M cases, personal treaty. Sy favourable articles we mean those which 
tend to the mutual advantage of the contracting powers, and 
which equally favour both parties; by odious articles, we 
understand those which onerate one of the parties only, or 
which impose a much heavier burden upon the one than upon 
the other. We shall treat this subject more at large in the 
chapter on the "Interpretation of Treaties." Nothing is 
more conformable to reason and equity than this rule. When- 
ever absolute certainty is unattainable in the affairs of men, 
we must have recourse to presumption. Now, if the con- 
tracting powers have not explained themselves, it is natural, 
when the question relates to things favourable, and equally 

30S 



AND OTHER PUBLIC TRBATIBS. 207 

advantageous to the two allies, to presume that it was their book ii. 
intention to make a real treaty, as being the more advan- <^g^^- ^"' 
tageous to their respective kingdoms : and if we are mistaken 
in this presumption, we do no injury to either party. But, 
if there be any thing odious in the engagements, — if one of 
the contracting states finds itself overburdened by them, — 
how can it be presumed that the prince who entered into 
such engagements intended to lay that burden upon his king- 
dom in perpetuity ? Every sovereign is presumed to desire 
the safety and advantage of the state with which he is in- 
trusted: wherefore it cannot be supposed that he has con- 
sented to load it for ever with a burdensome obligation. If 
necessity rendered such a measure unavoidable, it was in- 
cumbent on his ally to have the matter explicitly ascertained 
at the time ; and it is probable that he would not have neg- 
lected this precaution, well knowing that mankind in gene- 
ral, and sovereigns in particular, seldom submit to heavy and 
disagreeable burdens, unless bound to do so by formal obliga- 
tions. If it happens then that the presumption is a mistake, 
and makes him lose something of his right, it is a consequence 
of his own negligence. To this we may add, that, if either 
the one or the other must sacrifice a part of his right, it will 
be a less grievous violation of the laws of equity that the lat- [ 208 ] 
ter should forego an expected advantage, than that the fomaer 
should suffer a positive loss and detriment. This is the fa- 
mous distinction de lucro captandoj and de damno vitando. 

We do not hesitate to include equal treaties of commerce 
in the number of those that are favourable, since they are in 
general advantageous, and perfectly conformable to the law 
of nature. As to alliances made on account of war, Grotius 
says with reason, that '' defensive alliances are more of a 
favourable nature, — offensive alliances have something in 
them that approaches nearer to what is burdensome or 
odious."* 

We could not dispense with the preceding brief summary 
of those discussions, lest we should in this part of our trea- 
tise leave a disgusting chasm. They are, however, but sel- 
dom resorted to in modem practice, as sovereigns at present 
generally take the prudent precaution of explicitly ascertain- 
ing the duration of their treaties. They treat for themselves 
aim their successors, — for themselves and their kingdoms, — 
for perpetuity, — ^for a certain number of years, &c. — or they 
treat only for the time of their own reign, — ^for an affair 
peculiar to themselves, — for their families, &c. 

Since public treaties, even those of a personal nature, con-§ I9i. The 
eluded by a king, or by any other sovereign who is invested obligations 
with suflScient power, are treaties of state, and obligatory oi^ J^^'^g*' 
the whole nation (§ 186), real treaties, which were intended 

* De Jure BelH et PadB, lib. ii. cap. zvL § 16. 

303 



208 OF TREATIES OF ALLIAKCE, 

BOOK n. to subsist independently of the person who has concluded 
CKAP. 3CII. them, are undoubtedly binding on his successors ; and the 
from a real obligation which such treaties impose on the state passes 
treaty paBs successively to all her rulers as soon as they assume the pub- 
tothesuo- 2Jq authority. The case is the same with respect to the 
*^***^"* rights acquired by those treaties: they are acquired for the 
state, and successively pass to her conductors. 

It is at present a pretty general custom for the successor 
to confirm or renew even real alliances concluded by his pre- 
decessors : and prudence requires that this precaution should 
not be neglected, since men pay greater respect to an obli- 
gation which they have themselves contracted, than to one 
which devolves on them from another quarter, or to which 
they have only tacitly subjected themselves. The reason is, 
that, in the former case, they consider their word to be en- 
gaged, and, in the latter, their conscience alone. 
§i92.Trea- The treaties that have no relation to the performance of 
^rVT**™' reiterated acts, but merely relate to transient and single acts 
foi^aU wid* ^'liich are concluded at once, — those treaties (unless indeed 
perfected, it bo more proper to call them by another name*) — those 
conventions, those compacts, which are accomplished once for 
all, and not by successive acts, — are no sooner executed than 
[ 209 ] they are completed and perfected. If they are valid, they 
have in their own nature a perpetual and irrevocable effect : 
nor have we them in view when we inquire whether a treaty 
be real or personal. Puffendorf f gives us the following rules 
to direct us in this inquiry — "1. That the successors are 
bound to observe the treaties of peace concluded by their 
predecessors. 2. That a successor should observe all the 
la^vful conventions by which his predecessor has transferred 
any right to a third party." This is evidently wandering 
from the point in question : it is only saying that what is 
done with validity by a prince, cannot be annulled by his 
successors. — And who doubts it ? A treaty of peace is in 
its own nature made with a view to its perpetual duration : 
and, as soon as it is once duly concluded and ratified, the 
affair is at an end ; the treaty must be accomplished on both 
sides, and observed according to its tenor. If it is executed 
upon the spot, there ends the business at once. But, if the 
treaty contains engagements for the performance of succes- 
sive and reiterated acts, it will still be necessary to examine, 
according to the rules we have laid do^vn, whether it be in 
this respect real or personal, — whether the contracting par- 
ties intended to bind their successors to the performance of 
those acts, or only promised them for the time of their own 
reign. In the same manner, as soon as a right is transferred 
by a lawful convention, it no longer belongs to the state that 

* See Chap. XII. § 153, of this book, 
t Law of Nature and Nations, book 8, c 9, § 8, 
304 



AND OTHER PUBLIC TRBATIBS. 



209 



has ceded it ; the affair is concluded and terminated. Bat, book n. 
if the successor discovers any flaw in the deed of transfer, ch^p- 3"^- 
and proves it, he is.not to be accused of maintaining that the 
convention is not obligatory on him, and refusing to fulfil it ; 
— ^he only shows that such convention has not taken place : 
for a defective and invalid deed is a ntdlity, and to be consi- 
dered as having never existed. 

The third ride given by Puffendorf is no less useless with § 193- Tre«^ 
respect to this question. It is, " that if, after the other ally ^^^. 
has already executed something to which he was bound by ed on tiie ' 
virtue of the treaty, the king happens to die before he has one part 
accomplished in his turn what he had engaged to perform, 
his successor is indispensably obliged to perform it. For, 
what the other ally has executed under the condition of re- 
ceiving an equivalent, having turned to the advantage of the 
state, or at least having been done with that view, it is clear, 
that, if he does not receive the return for which he had . 
stipulated, he then acquires the same right as a man who has 
paid what he did not owe ; and, therefore, the successor is 
obliged to allow him a complete indemnification for what he 
has done or given, or to make gopd, on his own part, what 
his predecessor had engaged to perform*" AU this, I say, is 
foreign to our question. If the alliance is real, it still sub- 
sists, notwithstanding the death of one of the contracting 
parties ; if it is personal, it expires with them, or either of 
them (§ 183). But, when a personal alliance comes to be 
dissolved in this manner, it is quite a different question to [ 210 ] 
ascertain what one of the allied states is bound to perform, in 
oase the other has already executed soxoething in pursuance 
of the treaty : and this question is to be detegrmined j>u very 
different principles. It is necessary to distinguish the Bjntnre 
of what has been done pursuant to the treaty. If it has 
been any of those determinate and substantial acts which it 
is usual with contracting parties mutually to promise to each 
other in exchange, or by way of equivalent, there can be no 
doubt that he who has received, ought to give what he has 
promised in return, if he would adhere to the agreement, and 
is obliged to adhere to it : if he is not bound, and is unwilling 
to adhere to it, he ought to restore what he has received, to 
replace things in their former state, or to iademnify the ally 
from whom he has received the advantage in question. To act 
otherwise, would be keeping possession of another's property. 
In this case, the ally is ia the situation, not of a man who 
has paid what he did not owe, but of one who has paid be- 
forehand for a thing that has not been delivered to hun* 
But, if the personal treaty related to any of those uncertain 
and contingent acts which are to be peiformed as occasions 
offer,— of those promises which are not obligatory if an op- 
portunity of fulfilling them does not occur, — ^it is only on 
occasion likewise that the performance of similar acts is due 

39 2 AS 306 



2ia 6F TMATIB8 07 ALUAHCK^ 

BOOK n. iot return : and, when the term of the aUiance is expired, 
CHAP. XII. neither of the parties remains bound by any obligation. In 
a defensiye alliance, for instance, two kings have reciprocally 
promised each other a gratuitons assistance during the term 
of their Utcs : one of them is attacked ; he is succoured by 
his ally, and dies before he has an opportunity to succour 
him in his turn : the alliance is at an end, and no obligation 
thence devolves on the successor of the deceased, except in- 
deed that he certainly owes a debt of gratitude to the sove- 
reign who has given a salutary assistance to his state. And 
we must not pronounce such an alliance an injurious one to 
the ally who has given assistance without receiving any. His 
treaty was one of those speculating contracts in winch the 
advantages or disadvantages wholly depend on chance : he 
might have gained by it, though it has been his fate to lose. 

We might here propose another question. The personal 
alliance expiring at the death of one of the allies, if the sur- 
vivor, under an idea that it is to subsist with the successor, 
fulfils the treaty on his part in favour of the latter, defends 
his country, saves some of his towns, or furnishes provisioDB 
for his army, — what ought the sovereign to do, who is dius 
succoured ? He ought, doubtless, either to suffer the alliance 
to subsist, as the ally of his predecessor has conceived that 
it was to subsist (and this will be a tacit renewal and exten- 
sion of the treaty)— or to pay for the real service he has re- 
ceived, according to a just estimate of its importance, if he 
does not choose to continue that alliance. It would be in 
such a case as this that we might say with Puffendorf, that he 
[ 211 ] who has rendered such a service has acquired the right of a 

man who has paid what he did not owe. 
§ 194. The The duration of a personal alliance bein^ restricted to the 
personal al- persons of the contracting sovereigns, — ^i^ from any cause 
^ bwVone ■''whatsoever, one of them ceases to reign, the alliance ex- 
of^e con! W^ • f^^ ^^^^7 h&^^ contracted in quality of sovereigns ; and 
tracting he who ceases to reign no longer exists as a sovereign, though 
voweTB he still lives as a man. 

ceaBesto Kings do not always treat solely and directly for their 
§185^ Tiea. ^^^g^oms ; sometimes, by virtue of the power they hate in 
ties in their their hands, they make treaties relative to their own persons, 
own nature or their families; and this they may lawfully do, as the wdl- 
penonal. f^j.^ q{ ^^e State is interested in the safety and advantage ot 
the sovereign, properly understood. These treaties are per^ 
sonal in their own nature, and expire, of course, on the death 
of the king or the extinction of his family. Such is an alli- 
ance made for the defence of a king and his family. 
§ 196. Alii- It is asked, whether such an alliwce subsists with the king 
^^J^?" and the royal family, when, by some revolution, they are de- 
ttw deface priv^ of ^® crown. We have remarked above (§ 194), that 
of the kmg a personal alliance expires with the reign of hua who oon- 
and the tracted it : but that is to be understood of an alliance formed 

806 



AND OTHEB PUBLIC TBBATIS8. 211 

with the state, and restricted, in its duration, to the reign of book n. 
the contracting king. But the alliance of which we are now oHAP.am. 
to treat, is of another nature. Although obligatory on the royal 
state, since she is bound by all the public acts of her sove^ fiimily. 
reign, it is made directly in favour of the king and his family : 
it would, therefore, be absurd that it should be dissolved at 
the moment when they stand in need of it, and by the very 
event which it was intended to guard against. Besides, the 
king does not forfeit the character of royalty merely by the 
loss of his kingdom. If he is unjustly despoiled of it by an 
usurper, or by rebels, he still preserves his rights, among 
-which are to be reckoned his alliances. 

But who shall judge whether a king has been dethroned, 
lawfully or by violence? An independent nation acknow- 
ledges no judge. If the body of the nation declare that the 
king has forfeited his right, by the abuse he has made of it, 
and depose him, they may justly do it when their grievances 
are well founded ; and no other power has a right to censure 
their conduct. The personal ally of this king ought not, 
therefore, to assist him against the nation who have made use 
of their right in deposing him : if he attempts it, he injures 
that nation. England declared war against Louis XIV., in 
the year 1688, for supporting the interests of James II., who 
had been formally deposed by the nation. The same coun- 
try declared war against him a second time, at the beginning 
of the present century, because that prince acknowledged the 
son of the deposed monarch, imder the title of James III. • 
In doubtful cases, and when the body of the nation has not 
pronounced, or has not pronounced freely, a sovereign ought [ 212 ] 
naturally to support and defend an ally ; and it is then that 
the voluntary law of nations subsists between different states. 
The party who have expelled the king maintain that they 
have right on their side : the unfortunate prince and his allies 
flatty themselves with having the same advantage ; and, as 
they have no common judge upon earth, there remains no 
other mode of deciding the contest than an appeal to arms : 
they, therefore, engage in a formal war. 

Finally, when the foreign prince has faithfully fulfilled his 
engagements towards an unfortunate monarch, when he has 
done, in his defence, or to procure his restoration, every thing 
which, by the terms of the alliance, he was boimd to do, — ^if 
his efforts have proved ineffectual, it cannot be expected, by 
the dethroned prince, that he shall support an endless war in 
his favour, — that he shall for ever continue at enmity with 
the nation or the sovereign who has deprived him of the 
throne. He must at length think of peace, abandon his un- 
fortunate ally, and consider him as having himself abandoned 
his right through necessity. Thus, Louis XIY. was obliged 
to abandon James 11. and to acknowledge King William, 
though he had at first treated him as an usurper. 

^ 307 



212 OF TBBATIES OF ALLIANOB, ETC. 

BOOK II. The same queBtion presents itself in real alliances, and, in 

CHAP, xu, general, in all alliances made with a state, and not in parti- 

§197. Obli- cular with a king, for the defence of his person. An ally 

gationofa ought, doubtlcss, to be defended against every invasion, 

'®^ *^^*^ against every foreign violence, and even against his rebellious 

allied king subjects ; in the same manner a republic ought to be defended 

is deposed, against the enterprises of one who attempts to destroy the 

public liberty. But the other party in the alliance ought to 

recollect that he is the ally, and not the judge, of the state 

or the nation. If the nation has deposed her king in form, 

— ^if the people of a republic have expelled their magistrates, 

and set themselves at liberty, or, either expressly or tacitly, 

acknowledged the authority of an usurper, — to oppose these 

domestic regulations, or to dispute their justice or validity, 

would be interfering in the government of the nation, and 

doing her an injury (see §§ 54, &c. of this Book.) The ally 

remains the ally of the state, notwithstanding the change 

that has happened in it. However, if this change renders 

the alliance useless, dangerous, or disagreeable to him, he is 

at liberty to renounce it : for, he may upon good grounds 

assert that he would not have entered into an alliance with that 

nation, had she been under her present form of government. 

To this case we may also apply what we have said above 
respecting a personal ally. However just the cause of that 
king may be, who is expelled from the throne either by his 
subjects or by a foreign usurper, his allies are not obliged to 
• support an eternal war in his favour. After having made 
ineffectual efforts to reinstate him, they must at length restore 
to their people the blessings of peace ; they must come to an 
accommodation with the usurper, and for that purpose treat 
with him as with a lawful sovereign. Louis Al Y ., finding 
himself exhausted by a bloody and unsuccessful war, made 
[ 213 ] an offer, at Gertruvdenberg, to abandon his grandson, whom 
he had placed on the throne of Spain : and sSterwards, when 
the aspect of affairs was changed, Charles of Austria, the 
rival of Philip, saw himself, in his turn, abandoned by his 
allies. They grew weary of exhausting their states in order 
to put him in possession of a crown to which they thooirht 
him justly entitled, but which they no longer saw any prooa- 
bility of being able to procure for him. 



308 



OF THB DISSOLUTIOK AND BBNSWAL OF TRBATIBS. 213 



BOOK II. 
CHAP. XIII. 



' CHAP. XIIL 

OF THB DISSOLUTION AND RENEWAL OF TREATIES. (125) 

AN alliance is dissolved at the expiration of the term for § 198. £x- 
irhich it had been concluded. This term is sometimes fixed, P";a^on ©^ 
as, when an alliance is made for a certain number of years ; ^^^5^*5^, ^ 
sometimes it is uncertain, as in personal alliances, whose du- umited 
ration depends on the lives of the contracting powers. The time. 
term is likewise uncertain, when two or more sovereigns form 
an alliance with a view to some particular object; as, for 
instance, that of expelling a horde of barbarous invaders 
from a neighbouring country, — of reinstating a sovereign on 
his throne, &c. The duration of such an alliance depends 
on the completion of the enterprise for which it was formed. 
Thus, in the last-mentioned instance, when the sovereign is 
restored, and so firmly seated on his throne as to be able to 
retain the undisturbed possession of it, the alliance, which 
was formed with a sole view to his restoration, is now at an 
end. Sut, on the other hand, if the enterprise prove unsuc- 
cessful, — the moment his allies are convinced of the impossi- 
bility of carrying it into effect, the alliance is likewise at an 
end; for it is time to renounce an undertaking when it is 
acknowledged to be impracticable. 

A treaty entered into for a limited time may be renewed § 199. Rc- 
by the common consent of the allies, — which consent may be ^^^^ ^^ 
either expressly or tacitly made known. When the treaty is *"*^®^ 
expressly renewed, it is the same as if a new one were c(Ai- 
cluded, in all respects similar to the former. 

The tacit renewal of a treaty is not to be presumed upon 
slight grounds ; for, engagements of so high importance are 
well entitled to the formality of an express consent. The 
presumption, therefore, of a tacit renewal must be founded 
on acts of such a nature as not to admit a doubt of their hav- 
ing been performed in pursuance of the treaty. But, even in 
this case, still another difficulty arises : for, according to the 
circumstances and nature of the acts in question, they may 
prove nothing more than a simple continuation or extension 
of the treaty, — which is very different from a renewal, espe- 
cially as to the term of duration. For instance, England has [ 214 ] 
entered into a subsidiary treaty with a German prince, who is 
to keep on foot, during ten years, a stated number of troops 
at the disposal of that country, on condition of receiving from 
her a certain yearly sum. The ten years being expired, the 
king of England causes the sum stipulated for one year to be 

(125) See, in general, Grotius, b. 3, to 47, 615 to 630, and ii. Index, tit 
c. 2; and 1 Chitty*8 Com. Law, 8S Treatiet, 

309 



214 OF THE DISSOLUTION AND KENEWAL OF TBBATIB8. 

BOOK n. paid : the ally receives it : thus the treaty is indeed tacitly 
CHAP, xm. continued for one year ; but it cannot be said to be renewed; 
for the transaction of that year does not impose an obligation 
of doing the same thing for ten years successively. But, sup- 
posing a sovereign has, in consequence of an agreement with 
a neighbouring state, paid her a million of money for permis- 
sion to keep a garrison in one of her strongholds during ten 
years, — if, at the expiration of that term, the sovereign, in- 
stead of withdrawing his garrison, makes his ally a tender of 
another million, and the latter accepts it, the treaty is, in 
this case, tacitly renewed. 

When the term for which the treaty was made is expired, 
each of the allies is perfectly free, and may consent or refuse 
to renew it, as he thinks proper. It must, however, be con- 
fessed, that, if one of the parties, who has almost singly 
reaped all the advantages of the treaty, should, without just 
and substantial reasons, refuse to renew it now that he thinks 
he will no longer stand in need of it, and foresees the time 
approaching when his ally may derive advantage from it in 
turn, — such conduct would be dishonourable, inconsistent 
with that generosity which should characterize sovereigns, 
and widely distant from those sentiments of gratitude and 
friendship that are due to an old and faithful ally. It is but 
too common to see great potentates, when arrived at the sum- 
mit of power, neglect those who have assisted them in attain- 
ing it. 
§ 200. How Treaties contain promises that are perfect and reciprocal, 
a treaty ia If one of the allies fails in his engagements, the other may 
w^^viola- ^^^P®" ^^°^ ^^ ^^Ifil them : — a perfect promise confers a right 
ted by one ^0 do SO. But, if the latter has no other expedient than that 
of the con- of arms to force his ally to the performance of his promises, 
tracting h© will sometimes find it more eligible to cancel the promises 
paruea. ^^ yg ^^^ ^j^^ ^^^^^ ^^^ ^^ dissolve the treaty. He has un- 
doubtedly a right to do this, since his promises were made 
only on condition that the ally should, on his part, execute 
every thing which he had engaged to perform. The party, 
therefore, who is oiffended or injured in those particulars 
which constitute the basis of the treaty, is at liberty to 
choose the alternative of either compelling a faithless ally to 
fulfil his engagements, or of declaring the treaty dissolved 
by his violation of it. On such an occasion, prudence and 
wise policy will point out the line of conduct to be pursued. 
§201. The But when there exist between allies two or more treaties, 
violation of different from and independent of each other, the violation 
dowTot^ of one of those treaties does not directly disengage the in- 
cancel an- j^^ed party from the obligations he has contracted in the 
other. others : for, the promises contained in these do not depend 
on those included in the violated treaty. But the offended 
[ 215 ] ally may, on the breach of one treaty by the other party, 
threaten him with a renunciation, on his own part, of all the 

910 



}^ t)V TUB DIMOIrUTIOK AKD RStTHIWAL OF 9RBATIE8. 215 

otW treaties by which ther are united, — ^and may put his book n. 
threats in execution if the other disregards them. For, if any <?HAP.xm. 
one wrests or withholds from trie my right, I ma^, in the state 
t)f nature, in order to obliae.hiJn to do me justice, to punish 
limy or to indemnify myself* de{>riTe him also of some of his 
rights, or seiae and detain thcnoti till I have obtained complete 
saosfaotion. And, if recourse is had to arms, in order to 
obtain satisfaction for the iiifriuffement of that treaty, the 
offended party begins by stripping his enemy of all the rights 
which had accrued to him frohl the different treaties subsist- 
ing between them : and we shall see, in treating of war, that 
he may do this with justice; 

Some writers* would extend what we hare just said to the § 202. The 
different articles of a treaty which have no connection with violation of 
the article that has been violated,— raying we ought to con- ?^® ^^ 
sider those several articles as so many distinct treaties con- ^^ cai^i 
eluded at the same time^ They maintain, therefore, that, if the whole, 
either of the allies Violates oAe article of the treaty, the other (i^^) 
has not immediately a right to cancel the entire treaty, but 
that he may either refuse, in his turn, what he had promised 
with a view to the violated article, or compel his ally to fulfil 
his promises if there still remains a possibility of fulfilling 
them, — if not, to repair the damage ; and that for this pur- 
pose he may threaten to renounce the entire treaty,-*a menace 
which he may lawfully put in execution, if it be disregarded 
by the other. Such undoubtedly is the conduct which pru- 
dence, moderation, the love of peace, and charity would com- 
monly prescribe to nations. Who will deny this, and madly 
assert that sovereigns are allowed to have immediate recourse 
to arms, or even to break every treaty of alliance and friend- 
ship, for the least subject of complaint ? But the question 
here turns on the simple right, and not on the measures which 
are to be pureed in order to obtain justice ; and the principle 
upon which those writers ground their decision, appears to 
me utterly indefensible. We cannot consider the several 
articles of the same treaty as so uMuy distinct and independ- 
ent treaties : for, though we do not see any immediate con- 
nection between some of those articles, they are all connected 

<. II ■.— — ■■■ ■ ■ 1» — ■ ■ — I M ■ ■ - ■ ■ ' m ■'■■ ■ I- MI U .IW I ■!■ I. ■ ■ ■ P I !■ ■■■■'■ * -*■■■ ' ■ ■ — '■ I ■ ■■■■ I ■ ■■ ■ ■ 

* See Wolfiof , Jim Gent, $ 432. aliens but as native rabjects of Great 

(126) In Sutton r, Sutton^ I Ruw. 6l Britain, and capable of inheriting and 

Mylne Kep. 663, A, D. 1830, it was holding such lands, notwithstanding a 

held in the Court of Chancery, that, subsequent war between the two coun- 

under the treaty of pea<^, 19 Not. 1794, tries, and this in respect of the express 

between Great Britain and {the United provision which prevents a subsequent 

States of} America, the act of 37 G90. 3, war from wholly determining that part of 

c 97, passed for the purpose of canrjring the trea^. The Master of the Rolls there 

such treaty into execution, American ci- said, « It is a reasonable construction, 

tizens, who held lands in Great Britain that it was the intention of the treaty 

on the 28th Oct. 1795, and their heirs that the operation of the treaty should 

and assigns, are at all times to be oonsi- be permanent, and not depend upon the 

dered, $o/ar at regardt thm lands, not as continuance of a state of peace." 

311 



215 OF THE DISSOLUTION AND BENBWAL OF TBEATIBS. 

BooKn. by this common relation, viz. that the contracting powers 
CHAP, xai, have agreed to some of them in consideration of the others, 
and by way of compensation. I would perhaps never have 
consented to this article, if my ally had not granted me an« 
other, which in its own nature has no relation to it. Every 
thing, therefore, which is comprehended in the same treaty, 
is of the same force and nature as a reciprocal promise, unless 
where a formal exception is made to the contrary. Grotius 
very properly observes that " every article of a treaty carries 
with it a condition, by the non-performance of wnich the 
treaty is wholly cancelled."* He adds, that a clause is some- 
times inserted to the following effect, viz. ^^ that the violation 
of any one of the articles shall not cancel the whole treaty," 
in order that one of the parties may not have, in every slight 
offence, a pretext for receding from his engagements. This 
precaution is extremely prudent, and very conformable to 
the care which nations ought to take of preserving peace, 
[ 216 ] and rendering their alliances durable. (127) 
§ 203. The In the same manner as a personal treaty expires at the 
treaty is void death of the king who has contracted it, a real treaty is dis- 
by the de- golved, if one of the allied nations is destroyed, — that is to 
cme d'^Sie ^^7' ^^* ^^^^ ^^ ^^® ™^^ ^^^ compose it happen all to perish* 
contracting but, also if, from any cause whatsoever, it loses its national 
powers. quality, or that of a political and independent society. Thus, 
when a state is destroyed and the people are dispersed, or 
when they are subdued by a conqueror, all their alliances and 
treaties fall to the ground with the public power that had 
contracted them. But it is here to be observed, that treaties 
or alliances which impose a mutual obligation to perform cer- 
tain acts, and whose existence consequently depends on that 
of the contracting powers, are not to be confounded with those 
contracts by which a perfect right is once for all acquired, 
independent of any mutual performance of subsequent acts. 
If, for instance, a nation has for ever ceded to a neighbouring 
prince the right of fishing in a certain river, or that of keep- 
ing a garrison in a particular fortress, that prince does not 
lose his rights, even though the nation from whom he has re- 
ceived them happens to be subdued, or in any other manner 
subjected to a foreign dominion. His rights do not depend 
on the preservation of that nation : she had alienated them ; 
and the conqueror by whom she has been subjugated can only 
take what belonged to her. In the same manner, the debts 
of a nation, or those for which the sovereign has mortgaged 
any of his towns or provinces, are not cancelled by conquest. 
The king of Prussia, on acquiring Silesia by conquest and by 
the treaty of Breslau, took upon himself the debts for which 

* Grotiufl de Jure Belli et Pads, lib. 1 Rosa. 6l Mylne, 663, is an express 

ii. cap. XV. § 16. decision upon 8U<^ a provision even by 

(127) The case of StUton ▼. SuiUm, implication. 
318 



OF THB DISSOLUTION AKD BX^tWAt Ot THBAtlBS. 216 

that province stood mortgaged to some English merchants, book h. 
In fact, his conquest extended no further than the acquisition chap, xiii. 
of those rights which the house of Austria had possessed over 
the country ; and he could only take possession of Silesia, 
such as he found it at the time of the conquest, with all its 
rights and all its burdens. For a conqueror to refuse to pay 
the debts of a country he has subdued, would be robbing the 
creditors, with whom he is not at war^ 

Since a nation or a state, of whatever kind, cannot make §204. AIH- 
any treaty contrary to those by which she is actually bound ^"ce"***'* 
(§ 166), she cannot put herself under the protection of another J^^J^! 
state, without reserving all her alliances and all her existing ^^^ p^t 
treaties. For, the convention by which a state places herself henelf un- 
nnder the protection of another sovereign, is a treaty (§ 175): ^^r the pro- 
if she does it of her own accord, she ought to do it in such a J|^^^*^ 
manner, that the new treaty may involve no infringement of 
her pre-existing ones. We have seen (§ 176) What rights a [ 217 ] 
nation derives, in a case of necessity^ from the duty of self- 
preservation. 

The alliances of a nation are therefore not dissolved when 
she puts herself under the protection of another state, unless 
they be incompatible with the conditions of that protection. 
The ties by which she was bound to her former allies still sub- 
sist, and those allies still remain bound by their engagements 
to her, as long as she has not put it out of her power to fulfil 
her engagements to them. 

When necessity obliges a people to put themselves under 
the protection of a foreign power, and to promise him the 
assistance of their whole force against all opponents whatso- 
ever, without excepting their allies, — ^their former alliances 
do indeed subsist, so far as they are not incompatible with 
the new treaty of protection. But, if the case should happen, 
that a former ally enters into a war with the protector, the 
protected state will be obliged to declare for the latter, to 
whom she is bound by closer ties, and by a treaty which, in 
case of collision, is paramount to all the others. Thus the 
Nepesinians, having been obliged to submit to the Etrurians, 
thought themselves afterwards bound to adhere to their treaty 
of submission or capitulation, preferably to the alliance which 
had subsisted between them and the Komans : postqtuim de- 
ditumis, quam 8ocietati8^ fides sanctior erat, says Livy.* 

Finally, as treaties are made by the mutual agreement of § 206. 
the parties, they may also be dissolved by mutual consent, at Treaties 
the free will of the contracting powers. And, even though a ^i««>l^ed ^J 
third party should find himself interested in the preservation ™"^^ *^"' 
of the treaty, and should suffer by its dissolution, — yet, if he 
had no share in making such treaty, and no direct promise 
hsA been made to him, those who have reciprocally made pro- 

• Lib. vL cap. x. 
40 2B 818 



217 OF OTHER PUBUC OONYEimOKSy BTa 

BOOK n. wises to each other, which eventuallj prove advantageous to 
OHAP. xiiL that third party, may also reciprocally release each other 
from them, without consnltiDg him, or without his having a 
right to oppose them. Two monarchs have bound themselves 
by a mutual promise to unite their forces for the defence of a 
neighbouring city; that city derives advantage from their 
assistance ; but she has no right to it ; and, as soon as the 
two monarchs think proper mutually to dispense with their 
engagements, she will be deprived of their aid, but can have 
no reason to complain on the occasion, since no promise had 
been made to her. 



[ 218 ] CHAP. XIV. 

CHAP. xiY. OP OTHER PUBLIC CONVENTIONS,— OF THOSE THAT ARE MADB 
BY SUBORDINATE POWERS, — PARTICULARLY OP THE AGREE- 
MENT CALLED IN LATIN 6P0NSI0, — ^AND OP CONVENTIONS OP 
SOVEREIGNS WITH PRIVATE PERSONS. 

§ 206. Con- THE public compacts, called conventions, articles of a^ee- 
^^i^**b* ™®^*> ^<5., when they are made between sovereigns, differ 
BovereigM. ^^om treaties only in their object (§ 153). What we have 
said of the validity of treaties, of their execution, of their 
dissolution, and of the obligations and rights that flow from 
them, is all applicable to the various conventions which sove- 
reigns may conclude with each other. Treaties, conventions, 
and agreements are all public engagements, in regard to 
which there is but one and the same right, and the same 
rules. We do not here wish to disgust the reader by unne- 
cessary repetitions : and it were equally unnecessary to enter 
into an enumeration of the various kinds of these conven- 
tions, which are always of the same nature, and differ only 
in the matter which constitutes their object. 
§207. But there are public conventions made by subordinate 

^^jJJ^^® powers, in virtue either of an express mandate from the 
nate powers, sovereign, or of the authority with which they are invested 
by the terms of their commission, and according as the nature 
of the affairs with which they are intrusted may admit or re* 
quire the exercise of that authority. 

The appellation of inferior or mbcyrdiriate powers is given 
to public persons who exercise some portion of the sovereignty 
in the name and under the authority of the sovereign : such 
are magistrates established for the administration of justice, 
generals of armies, and ministers of state. 

When, by an express order from their sovereign on the 

Particular occasion, and with sufficient powers derived from 
im for the purpose, those persons form a convention, such 



OF OTHBB PUBUO OONYBNTIOITS, ETC. 218 

convention is made in the name of the sovereign himself, who book u. 
contracts by the mediation and ministry of his delegate or chap, xnr. 
proxy : this is the case we have mentioned in § 156. 

Sat public persons, by virtue of their ofiSce, or of the com- 
mission given to them, have also themselves the power of 
making conventions on public affairs, exercising on those 
occasions the right and authority of the sovereign by whom 
they are commissioned. There are two modes in which they 
acquire that power; — it is given to them in express terms by 
the sovereign: or it is naturally derived from their commis- 
sion itself, — the nature of the affairs with which these persons 
and intrusted, requiring that they should have a power to 
make such conventions, especially in cases where they cannot 
await the orders of their sovereign. Thus, the governor of a [ 219 ] 
town, and the general who besieges it, have a power to settle 
the terms of capitulation ; and whatever agreement they thus 
form within the terms of their commission, is obligatory on 
the state or sovereign who has invested them with the power 
by which they conclude it. As conventions of this nature 
take place principally in war, we shall treat of them more at 
large in Book III. 

If a public person, an ambassador, or a general of an army, § 208« 
exceeding the bounds of his commission, concludes a treaty Treaties 
or a convention without orders from the sovereign, or without ?*^^^^f^ 
being authorized to do it by virtue of his office, the treaty is j^reon^ 
null, as being made without sufficient powers (§ 157) : it can- without 
not become valid without the express or tacit ratification of orders from 
the sovereign. The express ratification is a written deed by ^f ^^^ 
which the sovereign approves the treaty, and engages to ob- IJ^^^T 
serve it. The tacit ratification is implied by certain steps suffidfint 
which the sovereign is justly presumed to take only in pur- powers, 
suance of the treaty, and which he could not be supposed to 
take without considering it as concluded and agreed upon. 
Thus, on a treaty of peace being signed by public ministers 
who have even exceeded the orders of their sovereigns, if one 
of the sovereigns causes troops to pass on the footing of 
friends through the territories of his reconciled enemy, he 
tacitly ratifies the treaty of peace. But if, by a reservatory 
clause of the treaty, the ratification of the sovereign be re- 
quired, — as such reservation is usually understood to imply 
an express ratification, it is absolutely requisite that the treaty 
be thus expressly ratified before it can acquire its full force. 

By the Latin term, aponsio, we express an agreement re- S J^09. The 
lating to affairs of state, made by a public person, who ex- "^j®?"*^* 
ceeds the bounds of his commission, and acts without the^^^^^ 
orders or command of the sovereign. The person who treats 
for the state in this manner without being commissioned for 
the purpose, promises of course to use his endeavours for pre- 
vailing on the state or sovereign to ratify the articles he has 
agreed to ; otherwise his engagement would be nugatory and 

316 



219 OP OTHER PUBLIC CONVENTIONS, ETC. 

BOOK n. illusive. The foundation of this agreement can be no other, 
CHAP. XIV. Qn either side, than the hope of such ratification. 

The Boman history furnishes us with various instances of 
such agreements : — the one that first arrests our attention is 
that which was concluded at the Furcse Caudinae — the most 
famous instance on record, and one that has been discussed 
by the most celebrated writers. The consuls Titus Veturius 
Galvinus and Spurius Postumius, with the Roman army, being 
enclosed in the defiles of the Furcae Caudinae, without hope 
of escaping, concluded a shameful agreement with the Sam- 
nites — informing them, however, that they could not make a 
real public treaty (foedus) without orders from the Roman 
people, without the fecialeSy and the ceremonies consecrated 
[ 220 ] by custom. The Samnite general contented himself with 
exacting a promise from the consuls and principal officers of 
the army, and obliging them to deliver him six hundred host- 
ages ; after which, having made the Roman troops lay down 
their arms, and obliged them to pass under the yoke, he dis- 
missed them. The senate, however, refused to accede to the 
treaty, — delivered up those who had concluded it to the Sam- 
nites, who refused to receive them — and then thought them- 
selves free from all obligation, and screened from all reproach.* 
Authors have entertained very different sentiments of this 
conduct. Some assert, that, if Rome did not choose to ratify 
the treaty, she ought to have replaced things in the same situ- 
ation they were in before the agreement, by sending back the 
whole army to their encampment at the Furcae Caudinae: and 
this the Samnites also insisted upon. I confess that I am 
not entirely satisfied with the reasonings I have found on 
this question, even in authors whose eminent superiority I 
am in other respects fully inclined to acknowledge. Let us 
therefore endeavour, with the aid of their observations, to set 
the affair in a new light. 
§210. The It presents two questions — first, what is the person bound 
b^d*b^°* to do, who has made an agreement («pow«or), if the state dis- 
sudian^ avows it? — Secondly, what is the state bound to do? But, 
agreement, previous to the discussion of these questions, it Is necessary 
to observe with Grotius,t that the state is not bound by an 
agreement of that nature. This is manifest, even from the 
definition of the agreement called sponsio. The state has 
not given orders to conclude it : neither has she in any man- 
ner whatever conferred the necessary powers for the pur- 
pose : she has neither expressly given them by her injunc- 
tions or by a plenipotentiary commission, nor tacitly by a 
natural or necessary consequence of the authority intrusted 
to him who makes the agreement (aponsori). The general 
of an army has, indeed, by virtue of his commission, a power 
to enter, as circumstances may require, into a private con- 

* Livy, lib. iz. t De Jure Belli et PacLs, lib. ii. cap. xv. § 16. 

816 



OP OTHER PUBLIC CONVBHTIONS, BTC. 220 

vention, — a compact relative to himself, to his troops, or to book n. 
the occarrences of war : but he has no power to conclude a ohap. xiv. 
treaty of peace. He may bind himself, and the troops under 
his command, on all the occasions where his functions re- 
. quire that he should have the power of treating ; but he can- 
not bind the state beyond the extent of his commission. , 

Let us now see to what the person promising {aponsor) is §211. To 
bound, when the state disavows the agreement. We ought ^hat the 
not here to deduce our arguments from the rules which ob- J^J^?\" 
tain between private individuals under the law of nature : it u di»!^ *"* 
for, the nature of the things in question, and the situation avowed, 
of the contracting parties, necessarily maJce a difference be- 
tween the two cases. It is certain that, between individuals, 
he who purely and simply promises what depends on the will 
of another, without being authorized to make such promise, 
is obliged, if the other disavows the transaction, to accom- [ 221 ] 
plish himself what he has promised, — to give an equivalent — 
to restore things to their former state ; or, finally, to make 
full compensation to the person with whom he has treated, 
according to the various circumstances of the case. His 
promise (sponsio) can be understood in no other light. But 
this is not the case with respect to a public person, who, with- 
out orders and without authority, engages for the perform- 
ance of his sovereign. The question in such case relates to 
things that infinitely surpass his power and all his faculties — 
things which he can neither execute himself nor cause to be 
executed, and for which he cannot offer either an equivalent 
or a compensation in any wise adequate : he is not even at 
liberty to give the enemy what he has promised, without au- 
thority : finally, it *Is equally out of his power to restore 
things entirely to their former state* The party who treats 
with him cannot expect any thing of this nature. If the 
promiser has deceived him by saying he was sufficiently au- 
thorized, he has a right to pimish him. But if, like the 
Roman consuls at the Furcse Caudinse, the promiser has 
acted with sincerity, informing him that he had not a power 
to bind the state by a treaty, — nothing else can be presumed, 
but that the other party was willing to run the risk of making 
a treaty that must become void, if not ratified, — ^hoping that a 
regard for him who had promised, and for the hostages, would 
induce the sovereign to ratify what had been thus concluded. 
If the event deceives his hopes, he can only blame his own 
imprudence. An eager desire of obtaining peace on advan- 
tageous conditions, and the temptation of some present ad- 
vantages, may have been his only inducements to make so 
hazardous an agreement. This was judiciously observed by 
the consul Postumius himself, after his return to Rome. !m 
his speech to the senate, as given to us by Livy, "Tour 
generals," said he, " and those of the enemy, were equally 
guilty of imprudence, — ^we, in incautiously involving ourselves 

2 B 2 317 



221 OF OTHBB P0BLIO COKYSNTIOITS, ETC. 

BOOK II. in a dangerous Bitaation,---^they, in suffering a victory to escape 
CHAP. XIV. them, of which the nature of the ground gave them a cer- 
tainty ; still distrusting their own advantages, and hasting, 
at any price, to disarm men who were ever formidable while 
they had arms in their hands. Why did they not keep us 
shut oip in our camp ? Why did they not send to Borne, in 
order to treat for peace, on sure grounds, with the senate and 
the people?" 

It is manifest that the Samnites contented themselves with 
the hope that the engagement which the consuls and principal 
officers had entered into, and the desire of saving six hundred 
knights, left as hostages, would induce* the Romans to ratify 
the agreement, considering, that, at all events, they should 
still have those six hundred hostages, with the arms and bag- 
gage of the army, and the vain, or rather, as it is proved by 
its consequences, the fatal glory, of having made them pass 
under the yoke. 

Under what obligation then were the consuls, and all the 
others who had joined with them in the promise {9pon%art%)f 
They themselves judged that they ought to be delivered up to 
[ 222 ] the Samnites. This was not a natural consequence of the 
agreement {ipoTmonii)', and from the observations above 
made, it does not appear that a general in such circumstances, 
having promised thmgs which the promisee well knew to be 
out of his power, is obliged, on his promise being disavowed, 
to surrender his own person by way of compensation. But, 
as he has a power expressly to enter into such an engagement 
which lies fairly within the bounds of his commission, the 
custom of those times had doubtless rendered such engage- 
ment a tacit clause of the agreement called sponnoj since the 
Bomans delivered up all the spofisoreSy all those who had pro- 
mised: this was a maxim of their fecial law.* 

If the gponaar has not expressly engaged to deliver himself 
up, and if established custom does not lay him under an obli- 
gation to do so, it would seem that he is bound to nothing 
mrther by his promise than honestly to endeavour, by every 
lawful means, to induce the sovereign to ratify what he has 
promised : and there cannot exist a doubt in the case, provided 
the treaty be at all equitable, advantageous to the state, or 
supportable in consideration of the misfortune from which it 
has preserved her. But, to set out with the intention of mak- 
ing a treaty the instrument to ward off a deadly blow from 
the state, and soon after to advise the sovereign to refuse his 
ratification, not because the treaty is insupportable, but be- 

* I hsre said in my preface, that it gave rise. They had also the can 

the fecial law of the Romans was their of the ceremonies on the declaration 

law of war. The college of the fedales of war, and on concluding treaties of 

were consulted on the causes that peace. The feciales were likewise con- 

migfat authorize the nation to engage suited, and their agen<7 empbyed, in 

IB a war, and on the questions to which all public treaties. 
318 



OF OTHER PUBLXO OONVEKTIONS, ETC. 222 

cause an advantage may be taken of its having been concluded book n. 
without authority — such a proceeding would undoubtedly be chap, xtv, 
a fraudulent and shameful abuse of the faith of treaties. Jintf 
what must the general do, who, in order to save his army, has 
been forced to conclude a treaty that is detrimental or dis- 
honourable to the state ? Must he advise the sovereign to 
ratify it ? He will content himself with laying open the mo- 
tives of his conduct, and the necessity that obliged him to 
treat : he will show, as Postumius did, that he alone is bounds 
and that he consents to be disowned and delivered up for the 
public safety. If the enemy are deceived, it is through their 
own folly. Was the. general bound to inform them that, in 
all probability, his promises would not be ratified? It would 
be too much to require this of him. In such a case, it is 
sufficient that he does not impose on the enemy by pretend- 
ing to more extensive powers than he really possesses, but 
contents himself with embracing the overtures which they 
make to him, without, on his side, holding forth any delusive 
hopes to decoy them into a treaty. It is the enemy's business 
to take all possible precautions for their own security : if they 
neglect them, why should not the general avail himself of 
their imprudence, as of an advantage presented to him by 
the hand of fortune 7 ^' It is she,'' said Postumius, ^' who has 
saved our army, after having put it in danger. The enemy's 
head was turned in his prosperity ; and his advantages have 
been no more to him than a pleasant dream." 

If the Samnites had only required of the Roman generals 
and army such engagements as the nature of their situation, 
and their commission, empowered them to enter into, — ^if they 
had obliged them to surrender themselves prisoners of war, — 
or if, from their inability to hold them all prisoners, they had [ 223 ] 
dismissed them, upon their promise not to bear arms against 
them for some years, in case Rome should refuse to ratify the 
peaoe^ — ^the agreement would have been valid, as being made 
with sufficient powers ; and the whole army would have been 
bound to observe it ; for, it is absolutely necessary that the 
troops, or their officers, should have a power of entering into a 
contract on those occasions, and upon that footing. This is the 
case of capitulations, of which we shall speak in treating of war. 

If the promisor has made an equitable and honourable 
convention, on an aflfair of such a nature, that, in case the 
convention be disallowed, he still has it in his own power to 
indemnify the party with whom he has treated, — ^he is pre- 
snmed to have personally pledged himself for such indemnifi- 
cation ; and he is bound to make it, in order to discharge his 
promise, as did Fabius Mazimus in the instance mentioned by 
Qrotius.'^ But there are occasions when the sovereign may 

* Lib. ii. chap. zv. § 16. Fabius ment with the enemy which the se- 
Maximue having concluded an agree- nate diaappraved, sold a piece of land 

319 



228 OF OTHER PUBLIC OONySKTIOKS, BTC. 

BOOK n. forbid him to act in that manner, or to give any thing to the 
OHAP. xiT. enemies of the state. 

§ 212. To We have shown that a state cannot be bound by an agree- 
what the ment made without her orders, and without her having granted 
Bovepeig:nifl ^j^j power for that purpose. But is she absolutely free 
^ from all obligation ? That is the point which now remains 

for us to examine. If matters as yet continue in their 
original situation, the state or the sovereign may simply 
disavow the treaty, which is of course done away by such disa- 
vowal, and becomes as perfect a nullity as if it had never ex- 
isted. But the sovereign ought to make known his intentions 
as soon as the treaty comes to his knowledge ; not, indeed, 
that his silence alone can give validity to a convention which 
the contracting parties have agreed not to consider as valid 
without his approbation ; but it would be a breach of good 
faith in him to suffer a sufficient time to elapse for the other 
party to execute, on his side, an agreement which he himself 
is determined not to ratify. 

If any thing has already been done in consequence of the 
agreement, — it the party, who has treated with the 9pon%orj 
has on his side fulfilled his engagements, either in the whole 
or in part, — is the other party, on disavowing the treaty, 
bound to indemnify him, or restore things to their former 
situation ? — or is he allowed to reap the fruits of the treaty, 
[ 224 ] at the same time that he refuses to ratify it ? — We should 
here distinguish the nature of the things that have been exe- 
cuted, and that of the advantages which have thence accrued 
to the state. He who, having treated with a public person 
not furnished with sufficient powers, executes the agreement 
on his side without waiting for its ratification, is guilty of im- 
prudence, and commits an egregious error, into which he has 
not been led by the state with which he supposes he has con- 
tracted. If he has given up any part of his property, the 
other party is not justifiable in tsiking advantage of his folly, 
and retaining possession of what he has so given. Thus, 
when a state, thinking she has concluded a peace with the 
enemy's general, has in consequence delivered up one of her 
strong places, or given a sum of money, the sovereign of that 
general is, undoubtedly, bound to restore what he has re- 
ceived, if he does not choose to ratify the agreement. To act 
otherwise, would be enriching himself with another's property, 
and retaining that property without having any title to it. 

But, if the agreement has given nothing to the state which 
she did not before possess, — if, as in that of the Furcse Caa- 
dinae, the advantage simply consists in her escape from an 
impending danger, her preservation from a threatened loss, — 

for which he received two hundred ransom of the priaonen. Aurel. Yio 

thousand sesterces, in order to make tor, de Viris Hluatr. Plutarch's Life 

good his promise. It related to the of Fabius Maximus. 
320 



OF OTHER PUBLIC CONVENTIONS, ETC. 224 

Bach advantage is a boon of fortune, which she may enjoy book n. 
without scruple. Who would refuse to be saved by the folly ^^^' "^' 
of his enemy? And who would think himself obliged to 
indemnify that enemy for the advantage he had suffered to 
escape him, when no fraud had been used to induce him to 
forego that advantage ? The Samnites pretended, that, if 
the ilomans would not ratify the treaty made by their con- 
suls, they ought to send back the army to the Furcae Caudi- 
n«, and restore every thing to its former state. Two tri- 
bunes of the people, who had been in the number of the 
iponsoreSj and wished to avoid being delivered up, had the 
assurance to maintain the same doctrine ; and some authors 
have declared themselves of their opinion. What ! the Sam- 
nites take advantage of conjunctures, in order to give law to 
the Romans, and to wrest from them a shameful treaty, — 
they are so imprudent as to treat with the consuls, who ex- 
pressly declare themselves unauthorized to contract for the 
state, — ^they suffer the Roman army to escape, after having 
covered them with infamv, — and shall not the Romans take 
advantage of the folly of an enemy so void of generosity ? 
Must they either ratify a shameful treaty, or restore to the 
enemy all those advantages which the situation of the ground 
had given them, but which he had lost merely through his own 
folly f Upon what principle can such a decision be founded ? 
Had Rome promised any thing to the Samnites ? Had she 
prevailed upon them to let her jlrmy go, previous to the rati- 
fication of the agreement made by the consuls ? If she had 
received any thing in consequence of that agreement, she 
would have been bound to restore it, as we have already 3aid, 
because she would have possessed it without a title, on de^ 
daring the treaty null. But she had no share in the conduct 
of her enemies: she did not contribute to the egregious 
blunder they had committed ; and she might as justly take [ 225 ] 
advantage of it, as generals in war do of the mistakes of an 
unskilful opponent. Suppose a conqueror after having con» 
eluded a treaty with ministers who have expressly reserved 
the ratification to their master, should have the imprudence 
to abandon all his conquests without waiting for such ratifi- 
cation, — must the other, with a foolish generosity, invite him 
back to take possession of them again, in case the treaty be 
not ratified? 

I confess, however, and freely acknowledge, that, if the 
enemy who suffer an entire army to escape on the faith of an 
a^eement concluded with the general, who is unprovided 
with sufficient powers, and a simple sponsor^ — ^I confess, I 
say, that, if the enemy have behaved generously,-^if they had 
not availed themselves of their advantages to dictate shame- 
ful or too severe conditions,— equity requires that the estate 
should either ratify the agreement or conclude a new treaty 
on just and reasonable conditions, abating even of her pre* 

*1 821 



226 OF OTHER PUBUG COKVENTIONB, ETO. 

BOOK n. tensions as far as the public welfare will allow. For, we 
f§£ZLiE!lL ought never to abuse the generosity and noble confidesoe 
even of an enemy. Puffendorf * thinks that the tireaty ^t 
the FurcsB Gaudinsd contained nothing that was too seveve 
or insupportable. That author seems to make no great ac- 
count of the shame and ignominy with which it would have 
branded the whole republic. He did not see the full exteat 
of the Roman policy, which would never permit them, in 
their neatest distresses, to accept a shameful treaty, or even 
to male peace on the footing of a conquered nation : — ^a sub- 
lime policy, to which Rome was indebted for all her greatness. 

Finally, let us observe, that, when the inferior power has, 
without orders, and without authority, concluded an equitable 
and honourable treaty, to rescue the state from an immiueat 
danger, if the sovereign afterwards, on seeing himself thus 
delivered, should refuse to ratify the treaty, not because he 
thinks it a disadvantageous one, but, merely through a wish 
to avoid performing those conditions which were annexed as 
the price of his deliverance, he would certaiiJv act in oppo- 
sition to all the rules -of honour and equity. This would be a 
case in which we might &pply the maxim, summum Jus^ 9umfna 
injuria. 

To the example we have drawn from the Roman history, let 
us add a famous one taken from modern history. The Swiss, 
dissatisfied with France, entered into an alliance with the em- 
peror against Louis XII. and made an irruption into Burgundy, 
in the year 1513. They laid siege to Dijon. La TrimouiUe, 
who commanded in the place, fearing that he should be unable 
to save it, treated with the Swiss, and, without waiting for a 
commission from the king, concluded an agreement, by virtue 
of which the king of France was to renounce his pretensions 
to the duchy of Milan, and to pay the Swiss, by settled in- 
stalments, the sum of six hundred thousand crowns ; whereas 
the Swiss, on their side, promised nothing further than to re- 
turn home to their own country, — ^thus remaining at liberty 
to attack France again, if they thought proper. They re- 
ceived hostages, and departed. The king was very much dis- 
satisfied with the treaty, though it had saved Dijon, and rescued 
the kingdom from an imminent and alarming danger ; and he 
[ 226 ] refused to ratify it.'*t It is certain that La Trimouille had 
exceeded the powers he derived from his commission, espe- 
cially in promising that the king should renounce the duchy of 
Milan. It is probable, indeed, that his only view was to rid 
himself of an enemy whom it was less difficult to overreach 
in negotiation than to subdue in battle. Louis was not obliged 
to ratify and execute a treaty concluded without orders and 
without authority; and, if the Swiss were deceived, they 

* Jos Nat et Qent lib. tuL cap. iz. f Choiooiardini, book xVL diapw u.-— 
i 12. Be WattaviUe'i History of tbe Helvetio 

Confederacy, part IL p. 186, Ae. 
823 



OF OTHBE PUBLIC CONVENTIONS, ETC. 226 



ooold only blame their own imprudence. But, as it manifesdy 
appeared that La Trimouille did not behave towards them witn • 



BOOS II. 



candour and honesty, since he had deceived them on the sub- 
ject of the hostages, by giving, in that character, men of the 
meanest rank, instead of four of the most distinguished citi- 
zens, as he had promised,* — ^the Swiss would have been justi- 
fiable in refusing to make peace without obtaining satisfaction 
for that act of perfidy, either by the surrender of him who 
was the author of it, or in some other manner. 

The promises, the conventions, all the private contracts of i 218. Pri- 
the sovereign, are naturally subject to the same rules as those ^**^ ^^- 
of private persons. If any difficulties arise on the subject, it^^^^* ^ 
is equally conformable to the rules of decorum, to that deli- 
cacy of sentiment which ought to be particularly conspicuous 
in a sovereign, and to the love of justice, to cause them to 
be decided by the tribunals of the state. And such indeed 
is the practice of all civilized states that are governed by 
settled laws.. 

The conventions and contracts which the sovereign, in his j 214. Con- 
sovereign character and in the name of the state, forms with *J»«<f ™af « 
private individuals of a foreign nation, fall under the rules ^^. ^^ ^^^ 
we have laid down with respect to public treaties. In fact, go^g ^ ^^ 
when a sovereign enters into a contract with one who is name of the 
wholly independent of him and of the state, whether it be >*»^- 
with a private person, or with a nation or sovereign, this cir- 
cumstance does not produce any diflference in the rights of 
the parties. If the private person who has treated with the 
sovereign is liis subject, the rights of each party in this case 
also are the same : but there is a difference in the manner of 
deciding the controversies which may arise from the contract. 
That private person, being a subject of the state, is obliged 
to submit his pretensions to the established courts of justice. 
It is added by some writers on this subject, that the sovereign 
may rescind those contracts, if they prove inimical to the 
public welfare. Undoubtedly he may do so, but not upon any 
principle derived from the peculiar nature of such contracts : [ 227 ] 
— ^it must be either upon the same principle which invalidates 
even a public treaty when it is ruinous to the state and incon- 
sistent with the public safety, — or by virtue of the eminent 
domain, which gives the sovereign a right to dispose of the 
property of the citizens with a view to the common safety. 
We speak here of an absolute sovereign. It is from the con- 
stitution of each state that we are to learn who are the per- 
sons, and what is the power, entitled to contract in the name 
of the state, to exercise the supreme authority, and to pro- 
nounce on what the public welfare requires. 

When a lawful power contracts in the name of the state, it ? 215. They 
lays an obligation on the nation itself, and consequently on ^^ binding 

on the na- 

• See De Watteyille'e History of the Helvetio Confederacy, p. 100. 

323 



227 OP OTHER PUBLIC CONVENTIONSj ETC. 

BOOK n. all the future rulers of the society. When, therefore, a prince 
CHAP. Txv. Y^^ ^YxQ power to form a contract in the name of the state, he 
tion,and onlays an obligation on all his successors; and these are not 
son!^^'" ^^^ bound than himself to fulfil his engagements. 
; 216. Debts The conductor of the nation may have dealings of his own, 
of the BOTo. and private debts ; and his private property alone is liable 
reign and fo^ the discharge of such debts. But loans contracted for 
e Btate. ^j^^ service of the state, debts incurred in the administration 
of public affairs, are contracts in all the strictness of law, and 
obligatory on the state and the whole nation, which is indis- 
pensably bound to discharge those debts.* When once they 
have been contracted by lawful authority, the right of the 
creditor is indefeasible. Whether the money borrowed has 
been turned to the advantage of the state, or squandered in 
foolish expenses, is no concern of the person who has lent it : 
he has intrusted the nation with his property, and the nation 
is bound to restore it to him again : it is so much the worse 
for her, if she has committed the management of her affairs 
to improper hands. 

This maxim, however, has its bounds, founded even on the 
nature of the thing. The sovereign has not, in general, a 

Sower to render the state or body corporate liable for the 
ebts he contracts, unless they be incurred with a view to the 
national advantage, and in order to enable him to provide for 
all occurrences. If he is absolute, it belongs to him alone to 
decide, in all doubtful cases, what the welfare and safety of 
the state require. But, if he should, without necessity, con- 
tract debts of immense magnitude and capable of ruining the 
nation for ever, there could not then exist any doubt in the 
case : the sovereign has evidently acted without authority ; 
and those who have lent him their money have imprudently 
[ 228 ] risked it. It cannot be presumed that a nation has ever con- 
sented to submit to utter ruin through the caprice and foolish 
prodigality of her ruler. 

As the national debts can only be paid by contributions 
and taxes, wherever the sovereign has not been intrusted by 
the nation with a power to levy taxes and contributions, or, 
in short, to raise supplies by his own authority, neither has 
he a power to render her liable for what he borrows, or to in- 
volve the state in debt. Thus, the king of England, who has 
the right of making peace and war, has not that of contract- 



* In 1596, Philip IL declared him- oould no longer find any one who wai 

self a bankrupt, under pretence that an willing to lend him money; and his 

unfair advantage had been taken of his affairs suffered so severely in eonso- 

necessities. His creditors loudly ex- quence, that ho was obliged to replace 

claimed against his conduct^ and as- things on their former footing, and to 

serted that no confidence could thenoe- heal the wound which he had given to 

forward be placed either in his word or the public faith.— Qrotius, Hist, of 

his treaties, since he interposed the the Disturbances in the Netherlands, 

royal authority to supersede them. He book 
32i 



OF THE FAITH OF TREATIES. 228 

ing national debts, without the concurrence of parliament : book n. 
because he cannot, without their concurrence, levy any money ^°^^' ^'^' 
on his people. 

The case is not the same with the donations of the sove- ; 217. Do. 
reign as with his debts. When a sovereign has borrowed "^^tio"*" o^ 
without necessity, or for an unwise purpose, the creditor has ^? ^^^ 
intrusted the state with his property ; and it is just that the"*^' 
state should restore it to him, if at the time of the transac- 
tion, he could entertain a reasonable presumption that it was 
to the state he was lending it. But, when the sovereign gives 
away any of the property of the state, — a part of the national 
domain, — a considerable fief, — he has no right to make such 
srant except with a view to the public welfare, as a reward 
for services rendered to the state, or for some other reason- 
able cause, in which the nation is concerned : if he has made 
the donation without reason, and without a lawful cause, he 
has made it without authority. His successor, or the' state, 
may at any time revoke such a grant ; nor would the revoca- 
tion be a wrong done to the grantee, since it does not deprive 
him of any thing which he could justly call his own. What 
we here advance holds true of every sovereign whom the law 
does not expressly invest with the free and absolute disposal 
of the national property : so dangerous a power is never to 
be founded on presumption. 

Immunities and privileges conferred by the mere liberality 
of the sovereign, are a kind of donations, and may be revoked 
in the same manner, if they prove detrimental to the state. 
But a sovereign cannot revoke them by his bare authority, 
imless he be absolute : and, even in this case, he ought to be 
cautious and moderate in the exertion of his power, uniting 
an equal share of prudence and equity on the occasion. Im- 
munities granted for particular reasons, or with a view to 
some return, partake of the nature of a burdensome contract, 
and can only be revoked in case of abuse, or when they be- 
come incompatible with the safety of the state. And if they 
be suppressed on this latter account, an indemnification is 
due to those who enjoyed them. 



CHAP. XV. [ 229 ] 

OF THE FAITH OF TREATIES. chap« xy. 



218. 



THOUGH we have sufficiently established (§§ 163 and 164) 2 
the indispensable necessity of keeping promises, and observ- ^^^^^JJl 
ing treaties, the subject is of such importance, that we cannot nations. 
forbear considering it here in a more general view, as inter- 
esting, not only to contracting parties, but likewise to all 
nations, and to the universal society of mankind. 

2C 325 



229 OF THK FAITH OF TBBATIE8. 



BOOK n. Every thing which the public safety renders inviolable is 
CHAP. XY. gg^^j.^^j jj^ societv. Thus, the person of the sovereign is sacred, 
because the safety of the state requires that he should be in 
perfect security, and above the reach of violence : thus the 
people of Rome declared the persons of their tribunes sacred, 
—considering it as essential to their own safety that their 
defenders should be screened from all vi<dence, and even ex- 
empt from fear. Every thing, therefore, which the common 
safety of mankind and the peace and security of human so- 
ciety require to be held inviolable, is a thing that should be 
sacred among nations. 
; 219. Trea- Who Can doubt that treaties are in the number of those 
ties are aa- things that are to be held sacred by nations ? By treaties 
tweonna- *^^ ^^^ important affairs are determined ; by them the pre- 
tions. tensions of sovereigns are regulated ; on them nations are to 

depend for the acknowledgment of their rights, and the secu- 
rity of their dearest interests. Between bodies politic, — ^be- 
tween sovereigns who acknowledge no superior on earth, — 
treaties are the only means of adjusting their various pre- 
tensions,— of establishing fixed rules of conduct, — of ascer- 
taining what they are entitled to expect, and what they have 
to depend on. But treaties are no better than empty words, 
if nations do not consider them as respectable engagements, 
— ^as rules which are to be inviolably observed by sovereigns, 
and held sacred throughout the whole earth. 
i 220. Th6 The faith of treaties, — that firm and sincere resolution, — 
faith of trea- that invariable constancy in fulfilling our engagements, — of 
ties ia sa- ^hich WO make profession in a treaty, is therefore to be held 
^^ sacred and inviolable between the nations of the earth, whose 

safety and repose it secures : and, if mankind be not wilfully 
deficient in their duty to themselves, infamy must ever be the 
portion of him who violates his faith. 
; 221. He He who violates his treaties, violates at the same time the 
who violates law of nations ; for, he disregards the faith of treaties, — ^that 
vioi^8*the ^^^^ which the law of nations declares sacred ; and, so far 
law of na- ^ depends on him, he renders it vain and ineffectual. Doubly 
tions. guilty? he does an injury to his ally, he does an injury to all 

nations, and inflicts a wound on the great society of mankind. 
[ 230 ] " On the observance and execution of treaties," said a re- 
spectable sovereign, " depends all the security which princes 
and states have with respect to each other : and no depend- 
ence could henceforward be placed in future conventions if 
the existing ones were not to be observed."* 
2 222. Right As all nations are interested in maintaining the faith of 
of nations treaties, and causing it to be everywhere considered as sacred 
*^^t^™ and inviolable, so Ukewise they are justifiable in forming a 
^ ^ confederacy for the purpose of repressing him who testifies a 



• Resolntion of the States-General, to the Memorial of the Marquis do St. 
of the 15th of March, 1726, in answer Philip, Ambassador of Spain. 
826 



07 THE FAITH OF TREATIES. 2S0 

disregard for it, — ^who openly sports with it, — ^who violates book h. 
and tramples it under foot. Such a man is a public enemy ■°°^' ^^\ 
who saps the foundations of the peace and common safety lof «^ *^® 
niations. But "we should be careful not to extend this maxim J^ ^ *'^**" 
to the prejudice of that liberty and independence to which 
every nation has a claim. When a sovereign breaks his' 
treatijss, or refuses to fulfil them, this does not immediately 
imply that he eonsiders them as empty names, and that he 
disregards the faith of treaties : he may have good reasons 
for thinking himself liberated from his engagements; and 
other sovereigns h&ve not a right to judge him. It is the 
sovereign who violates his engagements on pretences that are 
evidently frivolous, or who does not even think it worth his 
while to allege any pretence whatever, to give a colourable 
gloss to his conduct, and cast a veil over his want of faith, — 
it is such a sovereign who deserves to be treated as an enemy 
to the human race. 

In treating of religion, in the first book of this work, we i 223. The 
could not avoid giving several instances of the enormous J?'' **^ J^*" 
abuses which the popes formerly made of their authority, i^^^ j^^^. 
There was one in particular, which was equally injurious to all popes, 
states, and subversive of the law of nations. Several popes 
have undertaken to break the treaties of sovereigns ; they 
carried their daring audacity so far as to release a contract- 
ing power from his engagements, and to absolve him from 
the oaths by which he had confirmed them. Cesarini, legate 
of pope Eugenius the Fourth, wishing to break the treaty 
which Uladislaus, king of Poland ana Hungary, had con- 
cluded with the sultan Amurath, pronounced, in the pope's 
name, the king's absolution from his oaths.* In those times 
of ignorance, people thought themselves really bound by no- 
thing but their oaths, and they attributed to the pope the 
power of absolving them from oaths of every kind. Uladislaus 
renewed hostilities against the Turld : but that prince, in 
other respects worthy of a better fate, paid dearly for perfidy, 
or rather for his superstitious weakness : he perished, with 
his army, near Varna : — a loss which was fatal to Christen- 
dom, and brought on her by her spiritual head. The follow- 
ing epitaph was written on Uladislaus : 

^omnlidte Cannas, ego Varnam clade notavi. 

Discite, mortales, non temerare fidem. 
Me nisi pontifices jassissent rumpere fcedns, 

Non ferret Scylhicum Pannonis ora Jugnm. 

Pope John Xlt. declared null the oath which the emperor [ 231 ] 
Louis of Bavaria, and his competitor Frederic of Austria, had 
mutually taken when the emperor set the latter at liberty. 
Philip, duke of Burgundy, abandoning the alliance of the 

• HiBtorj of Poland, by the Chevalier Dlngoss, Nengobaner, Sarnicki, Herburt, 
d« SoUgna^ toI. ir. 112. Ho quotes De Fulstin, Ac 

327 



281 OF THB FAITH OF TBBATIBS. 

BOOK XL English, procured from the pope and the council of Basil an 
JS!ii!j..i^Ii. absolution from his oath. And at a time when the reviyal 
pf letters, and the establishment of the Reformation should 
have rendered the popes more circumspect, the legate CaraflQft, 
in order to induce Henry 11. of France to a renewal of hos- 
tilities, had'^th6 audacity to absolve him, in 1556, from the 
oath he had made to observe the truce of Yaucelles.* The 
famous peace of Westphalia displeasing the pope on many 
accounts, he did not confine himself to protesting against the 
articles of a treaty in which all Europe was interested : he 
published a bull, in which, from hU own certain knowledgCy 
and full e€cle8ia8tic<d power^ he declared several articles of 
the treaty nuU, vain^ invalid^ iniquiUmSj unjusty eondemnedj 
reprobated, frivohuSy void of force and effect; and that no- 
body was bound to observe them or any of them, though they 
were confirmed by oath. — ^Nor was this all : — ^his holiness, as- 
suming the tone of an absolute master, proceeds thus — Andy 
nevertkehsSj for the greater precaution, and as much as need 
be, from the same motions, knowledge, deliberations, and ple- 
nitude of power, we condemn, reprobate, break, annul, and 
derive of aU force and effect, the said articles, and all the 
other things prejudicial to the above, ^<?.t Who does not see 
that these daring acts of the popes, which were formerly very 
frequent, were violations of the law of nations, and directly 
tended to destroy all the bands that could unite mankind, 
and to sap the foundations of their tranquillity, or to render 
the pope sole arbiter of their affairs ? 
2 224. Tbia But who Can restrain his indignation at seeing this strange 
aboM au- abuse authorized by princes themselves ? In the treaty con- 
^kicea* ^ eluded at Vincennes, between Charles V. king of France, and 
Robert Stuart, king of Scotland, in 1371, it was agreed that 
the pope should absolve the Scots from aU the oaths they had 
taken in swearing to a truce with the JEnglish, and that he 
[ 232 ] should promise never to absolve the French or Scots from the 
oaths they were about to make in swearing to the new treaty.X 
i 225. u§e The custom generally received in former times, of swearing 
' ^'^ ^Q tj^g observance of treaties, had furnished the po|(es with a 
pretext for claiming the power of breaking them, by absolv- 
ing the contracting parties from their oaths. But, in the 
present day, even children know that an oath does not con- 

CUUBUbUM} . Ill** 1 • •« 

the obiiga- s^itutc the obligation to keep a promise or a treaty : it only 
Uon. (128) gives an additional strength to that obligation, by calling God 

* On these facts, see the French and out a previous declaration of hostili- 

German historians.—" Thus war was ties."— De Thou, lib. xvii. 

determined on in faroor of the pope : f History of the Treaty of Weet- 

and after cardinal Caraffa, by virtne of pbalia, by Father Bougeant, in Uno. 

the powers vested in him by his holi- voL vi. p. 413. 

ness, had absolved the king from the % Choisy's History of Charles Y. p. 

oaths he had taken in ratification of 282. 

the truce, he even permitted him to (128) Paley, in his Moral PkiloM- 

attack the emperor and his son with- phy, agrees in this view of monl obli- 
328 



of an oath 
in treaties. 



It does not 
constitute 



07 THE FAITH OF TREATIES. 282 

to bear witness. A man of sense, a man of honour, does not book n. 
think himself less bound by his word alone, by his faith once ■^"^' ^^\ 
pledged, than if he had added the sanction of an oath. Cicero 
would not have us to make much difference between a per- 
jurer and a liar. " The habit of lying (says that great man) 
paves the way to perjury. Whoever can be prevailed on to 
utter a falsehood, may be easily won over to commit perjury: 
for the man who has once deviated from the line of truth, 
generally feels as little scruple in consenting to a perjury as 
to a lie. For, what influence can the invocation of the gods 
have on the mind of him who is deaf to the voice of con- 
science? The same punishment, therefore, which heaven 
has ordained for the perjurer, awaits also the liar : for it is 
not on account' of the formula of words in which the oath is 
couched, but of the perfidy and villany displayed by the per- 
jurer in plotting harm against his neighbour, that the anger 
and indignation of the gods is roused.*'* 

The oath does not then produce a new obligation : it only 
gives additional force to the obligation imposed by the treaty, 
and in every thing shares the same fate with it. YHiere the 
treaty is of its own nature valid and obligatory, the oath (in 
itself a supererogatory obligation) is so too : but, where tne 
treaty is void, the oath is void likewise. 

The oath is a personal act: it can therefore only regard 1 226. it 
the person of him who swears, whether he swears himself, or *^®" "®* 
deputes another to swear in his name. However, as this act^*"^®^^ * 
does not produce a new obligation, it makes no change in the obiigationB. 
nature of a treaty. Thus, an alliance confirmed by oath*is 
0O confirmed only with respect to him who has contracted it : 
but if it be a real alliance, it survives him, and passes to his 
successors as an alliance not confirmed by oath. 

For the same reason, since the oath can impose no other {227. it 
obligation than that which results from the treaty itself, it «i^f8oo pro- 
gives no pre-eminence to one treaty, to the prejudice of those o™"J^°*ty**^ 
that are not sworn to. And as, in case of two treaties clash- above 
ing with each other, the more ancient ally is to be preferred another. 
(§ 167) ; the same rule should be observed, even though the 
more recent treaty has been confirmed by an oath. In the [ 232 ] 
same manner, since it is not allowable to engage in treaties 

gation. It ifl the modem polioj to consaeTlt Qnis enim deprecatione 

restraia pro9j>eet%ve oaths, or rather pro- deoranii non conscientiA fide commo- 

mises, and all extra-judicial oaths not vetor? Propterea, qase poena ab diis 

enential for eliciting evidence upon immortalibus perjuro, hsBC eadem men- 

ptut events.— G. daol constituta est Non enim ex pac- 

* At quid interest inter perjumm et tione verbomm quibos jusjnrandum 

mendaeem ? Qui mentiri solet, pejerare oomprehenditur, sed ex perfidia et 

eonsuevit. Quern ego, ut mentiatur, malitia per quam insidise tenduntnr 

indneere possum, ut pejeret, exorare alicni, dii immortales hominibus irasoi 

facile potero : nam qui semel a veritate et succensere consu^runt. Cicer. Orat 

deflexity hie non majori religione ad pro Q. Roscio, oomosdo. 
pegmium quam ad mendaciam perduci 

42 2o2 829 



283 OF THE FAITH OF TREATIES. 

BOOK n. incoBmstent with ezistiBg ones (§ 165), the circumstanee of 
CHAP. xY. ^^ ^^^1^ ^11 j^Q^ justify such treaties, nor give them sufficient 
validity to supersede those which are incompatible with them : 
— ^if it had such an effect, this would be a convenient mode 
for princes to rid themselves of their engagements. 
i 228. It Thus also an oath cannot give validity to a treaty that ia 
cannofc give of its own nature invalid, — justify a treaty which is in itself 
tr"^ *that ^^j^^^^ — ^^ impose any obligation to fulfil a treaty, howevrar 
is'^i^vaii^L lawfully concluded, when an occasion occurs in which the 
obser\'ance of it would be unlawful, — as for instance, if the 
ally to whom succours have been promised undertakes a war 
that is manifestly unjust. In short, every treaty made for a 
dishonourable purpose (§ 161), every treaty prejudicial to the 
state (§ 160), or contrary to her fundamental* laws (Book !• 
§ 265), being in its own nature void, — the oath that may have 
been added to such a treaty % void likewise, and falls to the 
ground together with the covenant which it was intended to 
confirm. 
2 229. As- The asseverations used in entering into engagements are 
8«TeraUoM. forms of expression intended to give the greater force to pro- 
mises. Thus, kings promise in the moit sacred manner, with 
good faith, solemnly, irreimcably, and engage their royal 
word, &c. A man of honour thinks himself 8i]3iciently bound 
by his word alone : yet these asseverations are not useless, in- 
asmuch as they tend to prove that the contracting parties 
form their engagements deliberately, and with a knowledge 
of what they are about» Hence^ consequently the violation 
of such engagements become the more disgraceful. With 
mankind, whose faith is so uncertain, every circumstance is 
to be turned to advantage : and since the sense of shame ppe- 
rates more powerfully on their minds than the sentiment of 
duty, it would be imprudent to neglect this method. 
i 280. The After what we have said above (§ 162), it were unnecessary 
^**'«^^d to undertake in this place to prove that the faith of treaties 
^*dopend ' ^^ ^^ relation to the difference of religion, and cannot in any 
on the dif. manner depend upon it. The monstrous maxim, that no faith 
ference of is to he kepCwith heretics, might formerly raise its head amidst 
reUgion. ^^ madness of party and the fury of superstition : but it is 

at present generally detested. 

; 231. Pre- If the security of him who stipulates for anything in his 

r"uk°'^ own favour prompts him to require precision, fulness, and 

wording"* *^® greatest clearness in the expressions, — ^good faith de- 

treatiee. mauds, on the other hatid, that each party should express his 

promises clearly, and without the least ambiguity. The faith 

of treaties is basely prostituted by studying to couch them in 

vague or equivocal terms, to introduce ambiguous expressions, 

to reserve subjects of dispute, to overreach those with whom 

we treat, and outdo them in cunning and duplicity. Let the 

man who excels in these arts boast of his happy talents, and 

esteem himself a keen negotiator ; but reason and the sacred 

330 



OF THE FAITH OP TRBATIBS. 284 



law of nature will clitts him as far beneath a vulgar cheat as book n. 
the majesty of kings is exalted above private persons. True ^^^^' ^^' 
diplomatic skill consists in guarding against imposition, not 
in practising it. 

Subterfuges in a treaty are not less contrary to good faith, i 232. Sub- 
His catholic Majesty, Ferdinand, having concluded a *^®**7 ^J^^ *" 
with the archduke his son-in-law, thought he could evade it ^ 
by privately protesting against the treaty : a puerile finesse ! 
which, without giving any right to that prince, only exposed 
his weakness and duplicity. 

The rules that establish a lawful interpretation of treaties i 233. An 
are aufficiently important to be made the subject of a distinct J^^®?^ 
chapter. For the present, let us simply observe that an evi-p^g^^^ ' 
dently false interpretation is the grossest imaginable violation inoonaistent 
of the faith of treaties. He that resorts to such an expedient, ^ti» the 
either impudently sports with that sacred faith, or sufficiently !J*^*^^ 
evinces his inward conviction of the degree of moral turpitude 
annexed to the violation of it : he wisnes to act a dishonest 
part, and yet preserve the character of an honest man : he 
is a puritanical impostor, who aggravates his crime by the 
addition of a detestable hypocrisy. Grotius quotes several 
instances of evidently false interpretations put upon treaties :* 
the Plateaus, having promised the Thebans to restore their 
prisoners, restored them after they had put them to death. 
Pericles, having promised to spare the lives of such of the 
enemy as laid down their arms,t ordered all those to be killed 
who had iron clasps to their cloaks. A Roman general,! hav- 
ing agreed with Antiochus to restore him half of his fleet, 
caused each of the ships to be sawed in two. All these in- 
terpretations are as fraudulent as that of Rhadamistus, who, 
according to Tacitus's account,|| having sworn to Mithridates 
that he would not employ either poison or the steel against 
him, caused him to be smothered under a heap of clothes. 

Our faith may be tacitly pledged, as well as expressly : it ? 234. Pwth 
is sufficient that it be pledged, in order to become obligatory : *^^*^^ 
the manner can make no difference in the case. The tacit ^^ ^ ' 
pledging of faith is founded on a tacit consent ; and a tacit 
consent is that which, is, by fair deduction, inferred from our 
actions. Thus, as Grotius observes,§ whatever is included in 
the nature of certain acts which are agreed upon, is tacitly 
comprehended in the agreement : or, in other words, every 
thing which is indispensably necessary to give effect to the 
articles agreed on, is tacitly granted. If, for instance, a pro- 
mise is made to a hostile army who have advanced far into 



* Be Jure Belli et Pacis, lib. ii. cap. j: Q. Fabios Labeo, acoording to Va- 

Xfi. J 5. leriuB Mazimns ; lAvj makes no men- 

t Litorallj, << lud down their tron or tion of the transaction. 

wteel :" henoe the perfidioas quibble on || AnnaL lib. zii. 

the word iron, which cannot be so well j Lib. iii. cap. zzi7. { 1. 
rendered in English. 

831 



286 OF SECURITIES GIVEN FOR 

BOOK II. the country, that thej shall be allowed to return home in 
CHAP. XV. gj^fety^ it ig manifest that they cannot be refused provisions ; 
for they cannot return without them. In the same manner, 
in demanding or accepting an interview, full security is 
tacitly promised. Livy justly says, that the Gallo-Greeks 
violated the law of nations in attacking the consul Manlius 
at the time when he was repairing to the place of interview 
to which they had invited him.* The emperor Valerian, 
having been defeated by Sapor, king of Persia, sent to him 
to sue for peace. Sapor declared that he wished to treat 
with the emperor in person ; and Valerian, having consented 
to the interview without any suspicion of fraud, was carried 
off by the perfidious enemy, who kept him a prisoner till 
his death, and treated him with the most brutal cruelty.f 

Grotius, in treating of tacit conventions, speaks of those in 
which the parties pledge their faith by mute signs.J But we 
ought not to confound these two kinds of tacit conventions : 
for that consent which is sufficiently notified by a sign, is an 
express consent, as clearly as if it had been signified by the 
voice. Words themselves are but signs established by cus- 
tom: and there are mute signs which established custom 
renders as clear and as express as words. Thus, at the present 
day, by displaying a white flag, a parley is demanded, as ex- 
pressly as it could be done by the use of speech. Security is 
tacitly promised to the enemy who advances upon this invita- 
tion. 



CHAP. XVI. 

OF SECURITIES GIVEN FOR THE OBSERVANCE OF TREATIES. 



i 235. Goa- CONVINCED by unhappy experience, that the faith of 
»nty. treaties, rsacred and inviolable as it ought to be, does not 
always afford a sufficient assurance that they shall be punc- 
tually observed, — mankind have sought for securities against 
perfidy, — for methods, whose efficacy should not depend on 
the good faith of the contracting parties. A guaranty is one 
of these means. YHien those who make a treaty of peace, 
or any other treaty, are not perfectly easy with respect to 
its observance, they require the guaranty of a powerful sove- 
reign. The guarantee promises . to maintain the conditions 
of the treaty, and to cause it to be observed. As he may 
find himself obliged to make use of force against the party 
who attempts to violate his promises, it is an engagement tha* 

* Livy, lib. xxxviii. cap. xxv. 

f The Life of Valeri&n in Crevlor's History of ihe Emperors. 

^ Lib. iii. cap. zxiv. } 5. 

332 



THE OBSERVANCE OF TREATIES. 285 



no sovereign ought to enter into lightly, and without good book h. 
reason. Princes indeed seldom enter into it unless when they °°^^' ^^'• . 
have an indirect interest in the observance of the treaty, or 
are induced by particular relations of friendship. The gua- [ 236 ] 
ranty may be promised equally to all the contracting parties, 
to some of them, or even to one alone : but it is commonly 
promised to all in general. It may also happen, when several 
sovereigns enter into a common alliance, that they all reci- 
procally pledge themselves to each other as guarantees for its 
observance. The guaranty is a kind of treaty, by which as- 
sistance and succours are promised to any one, in case he has 
need of them, in order to compel a faithless ally to fulfil his 
engagements. 

Guaranty being given in favour of the contracting powers, 1 236. it 
or of one of them, it does not authorize the guarantee to in- «*^®» *^® 
terfere in the execution of the treaty, or to enforce the ol>ser- J^^^^^ 
vance of it, unasked, and of his own accord. If, by mutual interfere un- 
consent, the parties think proper to deviate from the tenor asked in the 
of the treaty, to alter some of the articles, or to cancel it alto- ©xec^tiv of 
gether, — or if one party be willing to favour the other by a*'*'®**^* 
relaxation of any claim, — they have a right to do this, and 
the guarantee cannot oppose it. Simply bound by his pro- 
mise to support the party who should have reason to complain 
of the infraction ^f the treaty, he has acquired no rights for 
himself. The treaty was not made for him ; for, had that 
been the case, he would have been concerned, not merely as 
a guarantee, but as a principal in the contract. This obser- 
vation is of great importance : for care should be taken, lest, 
under colour of being a ^arantee, a powerful sovereign should 
render himself the arbiter of the affairs of his neighbours, 
and pretend to give them law. 

But it is true, that, if the parties make any change in the 
articles of the treaty without the consent and concurrence 
of the guarantee, the latter is no longer bound to adhere to 
the guaranty ; for the treaty thus changed is no longer that 
whidi he guarantied.(129) 

As no nation i^ obliged to do any thing for another nation, j 237. Na- 
which that other is herself capable of doing, it naturally fol-tof of tJie 
lows that the guarkntee is not bound to give his assistance ?^^^**^"^* 
except where the party to whom he has granted his guaranty ™^^"'' 
is of himself unable to obtain justice. 

If there arises any dispute between the contracting parties 
respecting the sense of any article of the treaty, the guarantee 
is not immediately obliged to assist him in favour of whom 
he has given his guaranty. As he cannot engage to support 
injustice, he is to examine, and to search for the true sense 

(129) This piindple of the law of Tiduals. 5 Ban. k Ores. 269; 2 Dowl. 
nationa in thia respect precisely applies ft B. 22; 6 Bing. 485. — C. 
to guaranties giyen by private indi- 

338 



286 OF SBGURITIES GIVBN FOR 

BOOK iL of the treaty, to weigh the pretensions of him who claims hia 
CHAP, xvi. guaranty ; and, if he finds them ill fonnded, he may refuse to 

support them, without failing in his engagements. 
i 238. The It is no less evident that the guaranty cannot impair the 
f "nat*iL '^8^^ ^^ *^y ^^® ^^^ ^ ^^^ * party to the treaty. If, there- 
pi^tii© ' ^^^^y ^* happens that the guarantied treaty proves derogatory 
rights of a to the rights of thoso who are not concerned in it, — ^the treaty 
third party, being unjust in this point, the guarantee is in no wise bound 
to procure the performance of it ; for, as we have shown above, 
he can never have incurred an obligation to support injustice. 
[ 237 ] This was the reason alleged by France, when, notwithstand- 
ing her having guarantied the famous pragmatic sanction of 
Charles YI., she declared for the house of Bavaria, in oppo- 
sition to the heiress of that emperor. This reason is incoa- 
testably a good one, in the general view of it : and the only 
question to be decided at wat time was, whether the court 
of Fraace made a just a^lication of it. 

Non nostnim inter roe tantas eomponere lites. 

I shall observe on this occasion, that, according to common 
usage, the term guaranty is often taken in a sense somewhat 
different from that we have given to it. For instance, most 
of the powers of Europe guarantied the act by which Charles 
YI. had regulated the succession to his dominions ; — sove- 
reigns sometimes reciprocally ^t^^ran^y their respective states. 
But we should rather denominate those transactions treaties 
of alliance, for the purpose, in the former case, of maintain- 
ing that rule of succession, — and, in the latter, of supporting 
the possession of those states. 
1 239. Dn. The guaranty naturally subsists as long as the treaty that 
ration of the ig the objcct of it; and, in case of doubt, this ought always 
^^**'*"*'^' to be presumed, since it is required, and given, for the secu- 
rity of the treaty. But there is no reason which can natu- 
rally prevent its limitation to a certain period, — ^to the lives 
of the contracting powers, to that of the guarantee, &c. In 
a word, whatever we have said of treaties in general is equally 
applicable to a treaty of guaranty. 
i 240. Troa. When there is question of things which another may do or 
^roi^*^ give as well as he who promises, as, for instance, the payment 
""" ' of a sum of money, it is safer to demand a security than a 
guaranty : for the sureti/ is bound to make good the promise 
in default of the principal, — ^whereas the guarantee is only 
obliged to use his best endeavours to obtain a performance of 
the promise from him who has made it 
i 241. A nation may put some of her possessions into the hands 

Pawna, ae- ^f another, for the security of her promises, debts, or engagc- 
^^J^^^*^ments. If she thus deposits movable property, she gives 
pledges* Poland formerly pledged a crown and other jewels 
to the sovereigns of Prussia. B^ut sometimes towns and pro- 
vinces are given in pawn. If they are only pledged by a 

334 • 



THB OBSBBVANCE OF TBBATIES. 287 

deed which assigns them as secaritj for a debt, they serve as book n. 
a mortgage : if they are actually put into the hands of the ere- 5"^^- ^^'- 
ditor, or of him with whom the affair has been transacted, he 
holds them as pledges: and, if the revenues are ceded to him 
as an equivalent for the interest of the debt, the transaction 
is called a compact of antiehreiu. 

The right which the possession of a town or province con- { 242. A 
fers upon him who holds it in pledge, extends no further than »»tio»^'" 
to secure the payment of what is due to him, or the perform- ^J^'^^®' 
ance of the promise that has been made to. him. He may^oXdaasa 
therefore retain the town or the province in his hands, till he pledge, 
is satisfied : but he has no right to make any change in it ; 
for that town, or that country, does not belong to him as pro- [ 238 ] 
prietor. He cannot even interfere in the government of it, 
beyond what is required for his own security, unless the 
empire, or the exercise of sovereignty, has been expressly 
made over to him. This last point is not naturally to be 
presumed, since it is sufficient for the security of the mort- 
gagee, that the country is put into his hands and under his 
power. Further, he is obliged, like every other person who 
has received a pledge, to preserve the country he holds as a 
security, and, as far as in his power, to prevent its suffering 
any damage or dilapidation : he is responsible for it ; and if 
the country is ruined through his fault, he is bound to in- 
demnify the state that intrusted him with the possession of 
it. If the sovereignty is deposited in his hands together 
with the country itself, he ought to govern it according to 
its constitution, and precisely in the same manner as the 
sovereign of the country was obliged to govern it ; for the 
latter could only pledge his lawful right. 

As soon as the debt is paid, or the treaty is fulfilled, the ; 243. How 
term of the security expires, and he who holds a town or a«^« J« 
province by this title is bound to restore it faithfully, in the J^jj^J^i^ 
same state in which he received it, so far as this depends 
on him. 

But to those who have no law but their avarice, or their 
ambi